March 2020

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©2020 Clark County Bar Association. The content on this page was originally published in the “Technology in Law Practice” issue of COMMUNIQUÉ* (March 2020).* This issue features content written by members of Nevada’s legal community including:

Additional content may be found in the full color issue of the publication (print and PDF versions), including:

  • CCBA President’s Message (March 2020): “Specialty Bar Leadership Development Program” By Mariteresa Rivera-Rogers, Esq.
  • View from the Bench: “Presiding Over the Las Vegas Justice Court Domestic-Violence Calendars” By Judge Elana Lee Graham and Judge Melisa De La Garza
  • Pro Bono Corner: “Pro Bono Service Provides Invaluable Lessons” By Noah Malgeri, Esq.
  • 2020 Annual Judicial Award of Excellence Nomination Information
  • Bar Activities
  • Member Moves
  • Court News
  • Marketplace

Advertisers and sponsors listed in Communiqué* (March 2020):


Phishing in the Desert

Caleb Green

By Caleb L. Green

Introduction

Moore’s Law provides that the number of transistors on a computer microchip doubles every two years, while the cost of computers decreases by 50 percent in that same time. Established by Gordon Moore—the former CEO of Intel—this observation stands for the proposition that we can expect the speed and capability of our computers to increase every couple of years while paying less for them. Indeed, we have seen Moore’s law in action down through the years. Long gone are the days of bulky cell phones and room-sized computers. Nowadays, we have more advanced technology in our pocket than the Apollo 11 spacecraft that made America’s first voyage to the moon in 1969.

As a society, we have become more reliant on this technology as it grows faster and more compact over the years. In fact, information technology makes up the backbone of modern businesses, law firms, and government agencies. Consequently, this makes organizations, both large and small, targets for cyber-crimes and attacks. Most organizations rely on various forms of information technology to further their business and operations, including smart devices, personal computers, and cloud-based systems to store consumer data, employee information, valuable intellectual property, and other sensitive information. As a result, hackers view these institutions as a reservoir of valuable information that can be exploited, held for ransom, or sold on the black market.

Notably, in light of the current state of foreign affairs, cyber-attacks are likely to increase. Recently, President Trump ordered an airstrike, killing one of Iran’s most powerful generals. The Iranian government has a well-documented reputation for using cyberattacks on critical infrastructures as a form of terrorism. Iran has attacked and successfully planted malicious malware in significant U.S. infrastructures, including dams. More recently, shortly after the U.S. airstrike, hackers claiming to be affiliated with Iran took over the website of the Federal Depository Library Program—an American government agency—and vandalized it with a defaced image of President Trump. Iran has also demonstrated a destructive appetite for malicious cyber warfare against other countries. For example, Iran hacked key oil workstations across Saudi Arabia in 2012 and 2016, causing damage to over 30,000 computers. Given Iran’s track record and the current level of conflict between the U.S. and Iran, U.S. officials are preparing for retaliation in the form of cyber-attacks.

Accordingly, cyberattacks should be viewed as an immediate and urgent challenge for institutions, including Nevada organizations. Nevada organizations and infrastructures are at significant risk from cyber warfare. As the entertainment capital of the world, Las Vegas, Nevada is a magnet for consumer data. In 2019, the City of Las Vegas welcomed a record of 51.1 million visitors, many of whom shared their personal data through gambling, entertainment services, sports activities, and healthcare, among other activities. Traveler consumer data volume is likely to increase in the coming years with the expansion of sports and entertainment in Southern Nevada, namely the addition of the Las Vegas Raiders and the 2020 NFL draft. As a result, Nevada will remain at high risk for cyber-security attacks as hackers will likely attempt to access the mounting amounts of consumer and personal information our businesses, municipalities, and organizations store.

Phishing Attacks

The leading cause of cyber-attacks worldwide is phishing attacks. Phishing is the use of electronic communications, including phone calls, text messages, and even social media tools, to disguise fraudulent communications as legitimate messages from trusted sources. These attacks seek to acquire sensitive information, including usernames, passwords, financial metrics, biometric data, intellectual property, and network credentials. Often, the email or message will contain a malware-infected attachment or hyperlink that if opened, will install malicious software on the device and surrender sensitive information. Cyber-attackers couple social engineering schemes with phishing ploys to manipulate users to carry out specific tasks, such as opening the malware-infected attachment, clicking the compromised link, or otherwise divulging confidential information.

The most recent example of a phishing attack occurred in Southern Nevada earlier this year. In January 2020, on the opening day of CES—the world’s largest consumer technology trade show—the City of Las Vegas prevented a major data breach. After the city’s computer network was breached, it was forced to take several systems offline, including its own website. Several reports have surfaced suggesting that the attack originated through an employee falling victim to a phishing email.

Additionally, law firms are not immune to phishing attacks. In recent years, cybercriminals have targeted law firms to gain access to the highly confidential data attorneys possess. The past few years have seen an increase in phishing attacks on law firms to steal data for insider trading. Cybercriminals also attempt to breach law firm networks to hold client information and sensitive data for ransom.

Preventing Cyber-Attacks

So, what can Southern Nevada institutions do to protect themselves from cyber-attacks? While you cannot guarantee the prevention of a cyber-attack or data breach, you can minimize those threats by developing strong cyber safety habits to help prepare for a cyber-attack.

Limit insider threats

Most cyber-attacks derive from human error. In other words, data breaches are often caused by people within the organization, such as employees, former employees, contractors or business associates, who have inside information concerning the organization’s security practices, data, and computer systems. Also known as “insiders,” these individuals have legitimate access to organization data to carry out their work duties and, through negligence or malicious conduct, reveal sensitive information to outside threats.

You can limit the risk of insider threats by restricting privileges and access to sensitive data and your organization’s computer network. For example, organizations can limit the end user’s administrative privileges and restrict certain users from downloading content. Likewise, by disabling input/output devices on workstations and computers, employees and associates will be unable to download and install malicious software that could jeopardize your organization.

Invest in information security resources

It is also prudent for organizations and businesses to invest in information security resources. Establishing an information security plan, hiring information technology professionals, installing security devices on your computer network—these may be necessary steps for your organization to take to reduce the risk of a data breach. The more your business or organization relies on technology, the more you should consider consulting with an information security professional about ensuring your business is properly protected.

Understand data breach disclosure requirements

While an institution can take every measure imaginable to prevent cyberattacks and data breaches, no organization or business can completely insulate themselves from outside threats compromising their sensitive information. Organizations that store consumer and customer data must also take additional steps to insulate themselves from legal liability in the event of a data breach. Nevada has adopted legislation mandating that organizations that collect and store personally identifiable information (PII), such as financial data, contact information, and passwords, of Nevada residents must follow specific procedures for notifying victims of the breach. For Nevada businesses that will likely collect consumer data and PII from non-Nevadans, tourists, and visitors, it is especially important to be aware of the notification requirements for other states and countries as well.

A former information technology professional, Caleb L. Green is a graduate of the William S. Boyd School of Law, an attorney at Dickinson Wright PLLC, and the Corporate Sponsorship and Fundraising Chair of the Las Vegas Chapter of the National Bar Association.


Family Law Specialty Tools

Marshal S. Willick

By Marshal S. Willick, Esq.

Family law gets increasingly technical and complicated, and tools have been developed to address it.

Child support

In 2017, the Nevada Legislature appointed a commission of mostly lawyers, judges, and bureaucrats to start a new review. There is no formal report, but the minutes and meeting recordings can be reviewed at https://dwss.nv.gov/Support/cs_meeting_minutes/.

The regulations adopted by the commission, enacted as part of the Nevada Administrative Code, and went into effect on February 1, 2020, and will apparently entirely replace the Nevada child support statutes set out in NRS 125.070 to 125B.080. See https://www.leg.state.nv.us/NAC/NAC-425.html.

The math involved in the new calculations is more complicated than in the prior child support statutes. Instead of the simple percentages-per-child with statutory presumptive maximums, the new regulations require a varying percentage of gross monthly income on the first $6,000 of income, depending on the number of children, a lower percentage on the next $4,000, and a still- lower percentage for income exceeding $10,000 per month.

On the low end of incomes, instead of a presumptive $100 per month, the regulations adopt reference to the federal poverty tables, which change annually.

Where there is joint custody of one or more children, the existing “offset” method is used. Where there is a mix of primary custody and joint custody, each parent’s obligation to the other is separately calculated and then offset.
A free dynamic estimator under the new regulations is posted on the main landing page of www.willicklawgroup.com under the heading “New Child Support Regulations Interactive Graph: Click here to learn more.” It allows a quick view of support across a range of numbers of children and income levels in a couple of seconds and takes into account the poverty-level alterations for low income cases.

The full program, which is in question-and-answer format, takes into account split custody situations and calculations of the offsets, including the poverty guidelines on the low end and the math for medical and child care costs. It is posted at https://scalc.mlawapp.com, has been added to the landing page for the Willick Law Group and QDRO Masters web sites, and is an option for anyone logging into the home page of MLAW located at https://mlawapp.com/. Results can be printed and taken to court.
The program is available on-line to anyone, from any device, and is in all Nevada self-help centers, law libraries, and the courtrooms in Clark County. So, even pro se litigants can quickly and correctly calculate support under the new regulations.

The district attorney has also distributed a calculator under the new regs, which calculates interest for primary and split custody, but not child care or medical expenses. It is posted at https://nvchildsupportguidelinescalculator.azurewebsites.net/getobligation.aspx.

There are some other calculators popping up on-line. It does not appear that all of them do all calculations required by the current regulations.

Malmquist

In Malmquist v. Malmquist, 106 Nev. 231, 792 P.2d 372 (1990), the Supreme Court of Nevada set forth a series of detailed mathematical formulas for determining the community property interest in a separate property residence, or vice versa.

The calculations required to actually apportion the equity between separate property and community property require a page of algebra to calculate the amount by which community property mortgage payments reduced the mortgage principal, which is divided by the original contract purchase price of residence. That fraction is multiplied by the total appreciation to yield the final community property share in the appreciation. The unpaid mortgage balance is essentially credited between community and separate property according to a time rule, depending on the total number of payments made rather than the principal actually paid down in each mortgage payment.

The calculator makes this process a matter of simply inputting the base numbers.

Case summaries

In prior years, there was a “Notable Domestic Relations Cases” list; it is posted at https://willicklawgroup.com/published-works/. It was made searchable and greatly expanded in MLAW Case Summaries, which allows use of any keyword or series of nested keywords to bring up both the summary and the full text of every Nevada family law case decided since 1864, the briefs leading to the major modern cases, plus all available persuasive authority (NFLR articles, other law review articles, CLE materials, legal notes, etc.) relating to Nevada family law, including often-cited caselaw from outside Nevada used here and every case cited in the Nevada Family Law Practice Manual.

The database is constantly updated and expanded, and includes all NRCP, EDCR, and WDCR rule sets, and relevant NRS sections. All documents can be searched, cut, pasted, or printed.

The program was intended to be a “leveling the playing field” tool; with it, any family law practitioner has the same information available to a family law specialist with decades of building a dedicated library.

Interest and penalties calculator

In use since 1991, and now web-based, the MLAW Judgment and Interest Calculator Program correctly calculates interest on Nevada judgments of any kind and penalties for child support arrearages, for any lump sum, periodic payments, or combination of sums due and unpaid. It automatically updates and accounts for all historical and future statutory interest rates (which change every six months).

Correct calculation of interest can dramatically increase the amount of a judgment. Under NRS 99.040(1), the calculation and recovery of interest is required as a matter of right, is not discretionary, and only requires determination of the rate of interest, the time it commences, and the amount to which interest applies.

Changes in Nevada law made doing interest calculations by hand virtually impossible. Additionally, generic computer packages are generally unable to deal with all the complexities of correctly calculating interest under the Nevada statutes and case law, including freezing some interest rates while adjusting others and the “looping” calculations that are required to comply with Nevada law. Generic software also does not handle Nevada’s semi-annually adjusted interest rate very well, or properly abide by Nevada case law (one frequent error is to apply payments to interest before principal).
Details about all four programs are posted at https://www.willicklawgroup.com/mlawresources/.

Marshal S. Willick, Esq. is the Principal of the Willick Law Group, an A/V-rated Las Vegas family law firm, and QDROMasters, its pension order drafting division. He can be reached at 3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2198. Phone: (702) 438-4100; fax: (702) 438-5311.


Technology for Good

Lauren Calvert

By Lauren D. Calvert, Esq.

Every lawyer has moments of hating technological advancement for the way it requires us to practice law. My confession: I never learned to type. I’ve broken two keyboards and a mouse out of pure frustration. But as much as moments like these—and recent coverage of world-wide technology failures—cause us consternation over the impact of technology on our everyday lives, the reality is legal tech is positively affecting our most vulnerable and underserved populations.

Lack of access

Millions of people in the United States lack access to basic legal resources for a variety of reasons. They forgo legal action because the system is too overwhelming or expensive, or because they are uncertain of when they would qualify for legal assistance. In addition to lower-income individuals, the elderly, middle-class Americans, recent college graduates, first-generation immigrants, and new parents all experience barriers to accessing necessary legal resources.

Stanford Law School’s Legal Design Lab examines how technology can be used to provide legal solutions to these groups. See http://www.legaltechdesign.com. According to the lab’s research, many low and middle-income Americans who have questions about the law instinctually turn to free online sources of information, such as Avvo.com or justanswer.com, which cannot compare to professional legal counsel and which often do not address jurisdictional variances. Despite these shortcomings, more than two-thirds of American adults report they would use online legal services if it would save them money. Increasing numbers of companies are seizing upon the public’s willingness to engage in online technologies and combining that with reliable and competent legal services.

Shining tech stars

Tangible examples of using technology to enhance access to justice is exemplified by a sampling of the annual Technology Initiative Grants awarded by the Legal Services Corporation. See https://www.lsc.gov/grants-grantee-resources/our-grant-programs:

  • Alaska Legal Services Corporation will create a web application, BeneFactor, to inform and assist individuals applying for social security disability benefits. Users are enabled to take their disability applications through the entire benefits process, including reconsideration or appeal.
  • Georgia Legal Services Program is building an online, interactive tutorial on landlord-tenant law to inform tenants of their rights and next steps, as well as train pro bono attorneys and legal aid staff. Participants are required to answer multiple-choice questions to ensure comprehension and to maximize effectiveness.
  • Community Legal Aid Services and Ohio Legal Help are developing mobile access for users of the Ohio State’s web site. Users can create a personalized dashboard to save and retrieve assembled documents, articles, and other ongoing tasks. The system can also send text reminders to users.
  • North Penn Legal Services will create a statewide, online system for conducting quick and flexible intake and referrals. The system will connect low-income individuals to a legal aid provider or resource that can best meet their needs, taking into account case priorities of those project partners.
  • Philadelphia Legal Assistance Center is partnering with Upsolve.org, the TurboTax of Chapter 7 bankruptcies, to develop artificial intelligence tools to guide individuals throughout the bankruptcy process, translating court filings into plain language, setting appointment reminders, and monitoring court dockets for case activity.

Not on the list, but notable, is JustFix.nyc, which assists pro se tenants in gathering evidence, mediating with their landlord through templated communications, reporting violations to city agencies, connecting with organizers and attorneys and presenting their evidentiary record to the housing court. The app includes an “Advocate Dashboard” to allow community organizers, attorneys, and other advocates to conduct targeted outreach, gather evidence for class actions, communicate with tenants, and analyze data about buildings, landlords, and neighborhoods.

What’s in it for me?

It’s not just indigent clients that can benefit from legal tech interventions. The time it takes a lawyer to create routine documents and how quickly a lawyer can find needed documents greatly impact an attorney’s productivity. If lawyers can do these mundane tasks more quickly, they can serve more clients in the same amount of time and, in turn, better serve the public, perhaps even creating the space necessary for lawyers to initiate or increase their pro bono commitments. Technology can also increase contact with new clientele.

For example, VisaBot’s immigration bot uses artificial intelligence and natural language processing to walk people through the entire process of applying for and securing Visas. Cat Zakrzewski, “Meet the Chatbot Taking on Immigration.” Wall Street Journal (March 17, 2017). Applicants download VisaBot’s Facebook Messenger chat bot, submit necessary information and supporting documents, and the bot ensures all applications are properly filled and filed. VisaBot stays with applicants until they have obtained their Visa. If the bot cannot resolve applicant inquiries, the case will escalate via Skype to an immigration attorney. By automating these mundane administrative tasks, lawyers’ time and resources can be put to a higher use.

Another app, Legal Risk Detector, is used by medical personnel and social workers to screen seniors for potential legal issues. See https://elderjusticeny.org/resources/legal-risk-detector-app. If a senior is identified as high-risk, the legal technology will do more than merely diagnose the situation: it will automatically connect the senior with an attorney, who will already have the relevant background information, enabling consultation to proceed more quickly. Taking a case from a hospital bed to the desk of an attorney at no cost and instantaneously was unimaginable just a few years ago.

Technology helping lawyers helping litigants

Technology also allows attorneys to provide pro bono services in practice areas outside their wheelhouse or in an expedited manner. New York’s Civil Legal Advice and Resource Office serves low-income individuals being sued by debt collectors. See www.CLAROnyc.org. Its pro bono attorneys face overwhelming demand and a limited window of consultation time, during which some essential documents are too complex to be drafted. In partnership with LawHelp Interactive, the organization automated forms used in the clinics to more quickly and efficiently generate documents. An Opposition to a Motion for Summary Judgment, which previously required hours to prepare, can now be done in minutes. Online templates provide guidance to less experienced volunteers or attorneys working outside of their area of expertise. Clinic volunteers are able to serve clients more quickly and thus serve more people.

LawHelp Interactive also partnered with Legal Aid Services of Oklahoma to expand the availability of pro bono assistance in expungement matters. See www.legalaidok.org. The technology facilitates the screening and intake process, generates forms, and permits remote and limited scope services. Individuals can complete a guided online interview to help determine if they qualify for expungement. Pro bono coordinators can then share information collected online with volunteer attorneys, who can remotely review the client’s information documents and create the necessary forms and instructions from within the LawHelp Interactive platform.

Other programs combine online document assembly with tools allowing volunteer attorneys to review those documents remotely. The Legal Aid Society of Northeastern New York is piloting Closing the Gap, an initiative to increase pro bono services in rural areas for housing and consumer cases through the use of remote assistance technology and client collaboration tools, including real-time video sessions, remote review of online forms, and generation of pro se answers. See www.closingthegapny.org.

It’s going to be okay – the robots are not taking over

Lawyers aren’t going away. The world needs us. However, right now, technology has a huge opportunity to fill the gap between justice and legal equality. Just remember that the next time you’re tempted to throw your computer out the window.

Lauren Calvert, Esq. is a partner and litigator at Messner Reeves LLP, despite having never learned to type. She represents both plaintiffs and defendants in matters involving catastrophic loss, complex litigation, deprivation of constitutional rights, employment law, and general appellate practice.


*About Communiqué

Communiqué is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

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Communiqué is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.