May is Constitutional Law Resource Month at the Harris County Law Library. We will feature items from our collection, including treatises, reference works, CLE course materials, form books, and other practitioner tools that may be useful in conducting constitutional law research .
On February 26, 2019, the Texas Supreme Court took an important step in the advancement of legal ethics in Texas by amending Paragraph 8 of the comment to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct. The rule, which addresses the duty of all Texas attorneys to be competent and conscientious in providing effective legal representation, now requires that practitioners also be aware of “the benefits and risks associated with relevant technology.”
By adopting this amendment, Texas has joined 35 other states who also require a duty of technology competence for lawyers. The significance of this new development cannot be overstated. By order of the Texas Supreme Court, attorneys must become aware of, if not proficient in, using technology to best serve their clients.
If you are a Texas lawyer who needs to brush up on your tech skills and learn more about recent developments in legal tech, the Harris County Law Library can help! Our Legal Tech Institute offers a variety of learning opportunities including our popular Hands-on Legal Tech Training courses every Thursday afternoon at 2:00 pm in the Law Library’s Legal Tech Lab. We also provide access to free online CLE courses via our On-Demand Learning Opportunities page.
To find out more about what the Harris County Law Library offers through our Legal Tech Institute, visit the LTI page on our website. With so many free learning opportunities at your disposal, it will be easy (and fun!) to comply with the new Texas Supreme Court requirement.
The Harris County Law Library’s Legal Tech Institute today released the 2019 Course Catalog for its Hands-on Legal Tech Training Program. This year, law librarians will teach nine courses on rotation at the Law Library’s Legal Tech Lab. Each course will focus on tech skills needed for legal work in a digital environment. Training sessions are free and open to all, and most carry free continuing legal education credit for Texas attorneys courtesy of the CLE Committee for the Office of Vince Ryan, Harris County Attorney.
“Since the Law Library joined our Office, we have worked to make it a destination where all residents of Harris County can connect with their government and access legal information,” County Attorney Ryan said. “I encourage everyone to take advantage of the free educational programs at the Law Library and to never hesitate to ask to use ‘our’ resources – they are your resources.”
Two instructors lead small classes of nine participants to ensure an interactive environment where students can ask questions and practice skills as they learn. Laptops funded by a 2017 grant from the Texas Bar Foundation are provided or participants can bring their own devices. Each class also touches on skills for all in attendance, from beginners to pros.
“Technology has clearly been a disruptive force in the legal community,” Legal Tech Institute Director Joe Lawson said. “While that presents competitive opportunities for some, it also creates barriers for others. For example, solo attorneys and self-represented litigants, who do not have in-house trainers and support staff like large law firms, may find it difficult to learn each new legal research platform or to use Microsoft Word in a way that complies with the new, tech-heavy procedural rules. As a public law library, our mission is to eliminate barriers to legal information. Offering these free, hands-on training opportunities to all is a big step in the right direction.”
Visit the Legal Tech Institute website at www.harriscountylawlibrary.org/tech to download a copy of the Course Catalog and to register for an upcoming training session. Anyone who is unable to register on the website can find assistance from 8 a.m. to 7 p.m. Monday through Friday at the Law Library’s reference desk, located at 1019 Congress Street, 1st floor, Houston, Texas 77002, or by phone at (713)755-8153.
Disruptive innovation, content curation and design thinking are buzzworthy terms that, despite their possible overuse, describe substantive and meaningful concepts with broad application across many disciplines. Design thinking, the application of design principles to solve problems, is being applied in a variety of fields, including business and industry, healthcare, education, and the law.
IDEO, a global design firm based on Palo Alto, is often credited as the architect of design thinking, and David Kelley, IDEO’s founder, is, not surprisingly, a strong advocate for this inventive problem-solving method. Along with his brother Tom (IDEO’s marketing manager), David Kelley has built a creativity engine that generates some of the most innovative ways of solving problems from the everyday to the exceptional. The brothers also write and speak about creativity and innovation in hopes of inspiring others to use design principles in their personal and professional endeavors.
One of their titles in particular, The Ten Faces of Innovation (written by Tom Kelley), resonates with many who work in law, tech, or at the intersections of these two fields as, increasingly, every lawyer must. Mr. Kelley discusses in some detail the different roles that each person on a team might play and the contributions that each member of a working group might bring to a problem-solving effort. One of those critical roles is that of the cross-pollinator, the person who “draws associations and connections between seemingly unrelated ideas or concepts to break new ground,” precisely the kind of thinking that’s required in the burgeoning field of public interest technology, a new and rapidly evolving area of practice that allows trained technologists to leverage their knowledge and skills for the benefit of the social good.
By combining tech expertise with fields such as public service, healthcare, criminal justice, education, immigration, child welfare, and the law, cross-pollinators are the perfect kinds of people to work in public interest tech.
To learn more about public interest tech, visit these sites:
Public interest Tech: A Growing Field You Should Know (Ford Foundation)
Public Interest Technology: About (New America)
Navigating Complexity in Pursuit of Public Interest Technology (Blue Ridge Labs)
Building our Technology Policy Future (Alan Davidson for Medium.com)
Navigating the Field of Civic Tech (Derek Poppert for Medium.com)
Also, because it’s voting season, we call your attention to these public interest/civic tech initiatives that are designed to increase turn-out at the polls and ensure a fair and accessible voting experience for all of the electorate:
In a Twitter post on Wednesday evening, Houston Chronicle data editor Matt Dempsey announced the acquisition of Texas voter registration data, which was purchased collaboratively by 20 newsrooms across Texas. Calling themselves the Texas Open Data Consortium, these news outlets will use the newly acquired information to report on voter demographics, the upcoming midterm elections, the geographic concentration (by ZIP code and/or county) of newly registered voters, the number and common characteristics of voters removed from the rolls, and much more. As a data analyst, Matt Dempsey was justifiably excited about the acquisition of this database, as were those who champion open data and free access to information. “This is a fantastic thing for open data, for journalism in Texas, for better and more in-depth stories on our electorate across the state,” Mr. Dempsey tweeted.
On Twitter, news of this collaborative effort was mostly well-received, but two questions emerged again and again: (1) Why isn’t this data already publicly available? and (2) How much did the database cost? Mr. Dempsey answered repeatedly that the Texas Voter Registration Database is not subject to a Public Information Act request and can only be obtained from the Texas Secretary of State as governed by Chapter 18 of the Texas Texas Election Code. Indeed, the law states specifically how copies of the dataset must be furnished upon request (§18.008) and what fees the registrar may charge for fulfilling such requests (§18.010). Each of the 20 news outlets who participated in the purchase contributed $180 for a total cost of roughly $3,600, according to Mr. Dempsey’s Twitter responses. (To purchase your very own Texas Voter Registration Database, click here.)
Each of the newsrooms provided a signed affidavit stating that the data would not be used for commercial purposes. All participants also agreed not to publish the data online, citing “a lot of concern among the public about this data set” and the need to exercise caution by protecting voters’ privacy. The Election Code (§18.009) clearly prohibits using the information “in connection with advertising or promoting commercial products or services.” The data will be used for news gathering only. Twitter responders from other states (Pennsylvania, New York, Washington) were incredulous that Texas exacts such a steep price for furnishing voter data, and others expressed their suspicions about how this data will actually be used, but for those who advocate for open data initiatives and responsible journalism, this is one for the win column.
Starting in December of last year, social media was full of more selfies than usual. That's when the Google Arts and Culture app launched its image-matching feature. Here's how it works. A user opens the app, finds the "Is My Portrait in a Museum?" prompt, and snaps a selfie with her camera. The image is uploaded into the Google cloud which then works its Google magic to find her doppelganger in a vast collection of digitized paintings culled from museums throughout the world. All of this sounds like a fun and harmless diversion, and, indeed, the app's sudden rise to the top of the charts attests to it widespread popularity. However, some worry that the app is inherently risky, and they question how Google will use the data it collects. In other words, the app is free, but at what cost to the user. In some jurisdictions, including Texas (and Illinois), biometric privacy protections are codified into the law in attempt to address exactly these concerns.
The use of facial recognition data for identification purposes is expressly prohibited in the Texas Business & Commerce Code, Section 503.001 unless certain requirements are met. Namely, the person or company who collects the biometric data must (1) inform the individual before capturing the biometric identifier and (2) receive the individual's consent. The Google Arts and Culture app does indeed prompt the user to accept the privacy agreement and states that Google "will only store your photo for the time it takes to search for matches." Nevertheless, Google has blocked the selfie-matching feature in Texas (and Illinois) fearing, presumably, the imposition of a $25,000 fine per violation of the Texas law.
It's been suggested that this denial of service may be Google's way of signaling to states who restrict the use of certain technologies that they won't be able share in all the benefits that tech companies have to offer. Perhaps it's a snub to those who won't cooperate with the tech giants by permitting the legal collection and use of biometric data. In any case, concerns about the collection of facial geometry data by Google, Facebook, Amazon, and others are very real, and although no federal laws yet exist to prohibit the use and retention of such data, this area of the law is sure to develop as the technology advances. Until then, there are ways to circumvent the Google restrictions in Texas and to find your look-alike in the art of the world. Have fun...if you dare!
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)
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!
The State Bar of Texas Computer and Technology Section worked with TexasBarCLE to create a series of short videos on tech-related topics. The program, called Tech Bytes, launched just one year ago in the spring of 2017. Already, there are more than 40 videos available, and the collection is growing.
The videos focus on technology's role in the legal profession and its application to the practice of law, with a special emphasis on tech tools and trends that impact legal ethics and current Rules. Topics vary from simple (redaction) to sophisticated (cybersecurity) and from the everyday (legal apps) to the esoteric (EXIF data). There is something for everyone no matter your level of tech knowledge. Even the most cyber-savvy lawyers will learn something useful. In each 4-7 minute video, explore a new topic. Cloud computing, data encryption, metadata, forensics, electronic data preservation, ransomware, and the ethics of social media are just a few.
Whether you're simply curious about trends in legal tech and want to keep abreast of the benefits and risks of using technology in the practice of law, or you're interested in earning CLE credit through self-study, the State Bar of Texas Computer and Technology Section has a Tech Byte video for you!
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.