November 2018

Check out the “Tech and the Law” issue (November 2018) of COMMUNIQUÉ, the official publication of the Clark County Bar Association online today. This issue features content written by members of Nevada’s legal community, including the following articles:

Click cover image to download full 48-page issue (4 MB PDF file).

In the print (and PDF) edition, readers can find the test and form for the CLE article, as well as read about court news, bar activities, and other practical content, including these featured pieces:

  • Message from CCBA President: “Good Lawyers Doing Good” by John P. Aldrich, Esq.
  • View from the Bench: Nevada Supreme Court Developing Ways to Share Information Faster By Chief Justice Michael L. Douglas
  • View from the Bench: Court of Appeals Update and Fond Farewell from the Chief Judge By Chief Judge Abbi Silver
  • Nevada Appellate Court Summaries by Joe Tommasino, Esq.
  • Attorney Memorial Service 2018 By Mariteresa Rivera-Rogers, Esq.
  • Pro Bono Corner: A Red Letter Day by Anat Levy, Esq.
  • Departments: Member Moves,  Court Changes, and The Marketplace

© 2018 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (November 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Illegally Streaming Content Is Not Fun and Games—It Is Theft

Ike Lawrence Epstein

By Ike Lawrence Epstein, Esq.

On October 6, 2018, UFC produced the biggest event in its 25-year history, UFC 229: Khabib vs. McGregor. Among the 12 bouts featured on the card, one showcased an intense rivalry that had been simmering for months and stoked fan interest around the world. UFC lightweight champion, Khabib Nurmagomedov, defended his title against former two-division champ and No. 1 contender, Conor McGregor, in the most anticipated fight in MMA history. While the fight (and its aftermath) will long be remembered by MMA fans, the event itself broke UFC records in Las Vegas for attendance (20,034) and gate ($17,188,895). As of the writing of this article, the event was also on pace to shatter another UFC record—the most Pay-Per-View buys in company history.

Pay-Per-Views are a crucial component of UFC’s content distribution ecosystem, and the segment makes up a significant portion of UFC’s revenue. In fact, UFC is the largest Pay-Per-View event provider in the world. Through cable, satellite, and digital distributors, UFC offers 12 live Pay-Per-Views annually, each positioned as marquee events featuring the best match ups, like Khabib vs. McGregor at UFC 229.

Given the importance of Pay-Per-Views to UFC’s business, it is necessary to remain vigilant and protect our copyrighted content from those who would seek to exploit it by illegally streaming our live events.

For UFC 229, UFC engaged VFT Solutions, a leader in the content consumption and protection field, to monitor piracy across live streaming social media sites, including Facebook, Twitter, Periscope, and YouTube. VFT’s platform identifies and records the participants on both ends of the piracy, including the streamers illegally using live social media applications to share copyrighted content and the viewers watching that content in real time. VFT’s technology helps educate viewers on the dangers and damage of live streaming piracy and also provides viewers with a link for legal viewing. Contrary to popular belief, those who view illegal streams do not remain anonymous.

Unauthorized live streaming of UFC’s copyrighted content should not be dismissed as a way for cord-cutting millennials to save money while engaging with the sport. It is theft, and among the victims are the incredibly talented men and women who compete in the Octagon. UFC believes that it has an obligation to protect its rights, as well as the rights of its athletes.

UFC continually examines its options to combat online piracy, including engaging third-party vendors like VFT. However, it is unfair for content owners to bear the brunt of the costs of this theft. Digital operators must be active participants in thwarting the retransmission of stolen live streaming content. They should take whatever steps necessary to disable the ability of pirates to upload content, including blocking any uploads from their IP address.

Piracy threatens the financial viability of UFC and many other businesses that rely upon live broadcasts. Like other American sports and entertainment companies, such as the NFL, NBA, Major League Baseball and ESPN, UFC creates thousands of jobs and has a significant positive economic impact on the local economies that host its events. For example, according to an independent analysis, UFC had a total economic impact of $313 million on the southern Nevada economy for just one recent event in Las Vegas. See UFC 200 Economic Impact Summary, Applied Analysis, August 2016. Extrapolated over more than 40 events during the calendar year, the economic impact on our communities is massive.

As with so many American businesses and employers, UFC’s success and its continued contributions to the economy depend largely on the rule of law and clear protections for innovation and investments in people, products, and intellectual property. When thieves steal broadcasts that law-abiding citizens pay for, such as from UFC, the NBA, or the NFL, and then share them with impunity over the internet, it undermines UFC’s investment, its profits and its ability to employ people and to help grow the economy.

Ike Lawrence Epstein serves as Senior Executive Vice President and Chief Operating Officer at Zuffa, LLC, which operates UFC®, the world’s leading mixed martial arts organization. He is responsible for Zuffa’s worldwide operations, with over 300 employees across four continents. Epstein holds a Juris Doctorate and a Bachelor of Arts from Vanderbilt University and is a member of the Vanderbilt University School of Law Board of Advisors.


Using Tech in the Practice of Law

By William T. Sykes, Esq. and Matthew S. Granda, Esq.

William Sykes
Matt Granda

Tech is now virtually unavoidable in the practice of law. Many courts in Nevada now require electronic filing. Many clients expect electronic communication, whether via email or texting on a smartphone.

More and more law firms are going paperless. Not long ago, options for computer networks and data storage for small to mid-size law firms were relatively limited. You had a server or multiple servers. And you had desktop computers. You used ethernet cables and hard-wired networks to connect everything. And that was the way it was.

The future is here – and tech is rapidly advancing. Cloud-based storage, cloud-based email, and cloud-based case management software are becoming the new norm. But along with more technology comes increased technological threats.

Going paperless and cloud-based storage

Going paperless sounds easy. You just scan every document that comes in and shred it. Problem solved; now you’re paperless, right? Not exactly. When our firm decided to go paperless, we had new issues to deal with, namely data storage. In addition to storing documents, we also had to deal with a massive increase in data usage from storing videotaped depositions and other data intensive projects. Moving to cloud-based storage presents its own slew of issues. The problem with cloud-based storage is it relies upon the speed of your internet connection. We soon learned that, with the amount of data we transmitted every day, our internet was too slow and it was difficult to access large files. If you transmit large amounts of data to and from your server as a daily part of your practice, make sure you have a very fast internet connection, or consider keeping your data storage in-house. Other options include offsite server storage at one of the local data centers. Again, make sure you have a robust internet connection because you will still have to access your data offsite.

Cloud-based email

Cloud-based email is an effective way to leverage tech to reduce the amount of headaches and storage issues that can be caused by hosting your own email service. Beware of “free” cloud-based email services, such as Gmail or Yahoo. These types of email services often require you to agree that all information and data you send or receive on the email service belongs to the email service – and not to you. Read the user agreements for these “free” email services carefully. If such agreements are enforceable, it creates a whole host of potential ethical issues. Try to avoid any type of “free” cloud-based email service for your law firm.

There are “business” versions of cloud-based email services, but the business versions often require a paid monthly subscription. For those who like Google products, G Suite may be a good, inexpensive option, with rates as low as five to 10 dollars per month per user.

When in doubt, go with a trusted cloud-based email service designed for small to mid-size businesses. For example, in addition to G Suite, Microsoft Office 365 also offers a comprehensive, cloud-based email service. Microsoft Office 365 and similar paid cloud-based email services provide a solid, user-friendly service that will allow you to store data-intensive emails and email attachments in the cloud.

Cloud-based law practice management software

Cloud-based law practice management software has finally become sophisticated enough to provide functional, comprehensive tools for law practice management. The benefits of cloud-based case management software include online storage of case management files and data, easy remote access, built-in customer service, and more frequent updates than your traditional case management software.

Commonly used cloud-based software includes Rocket Matter and MyCase. Filevine is a newer cloud-based case management software that shows quite a bit of promise for certain practice areas.

Cybersecurity: the elephant in the room

With more tech comes new threats. In 2015, IBM’s Chairman, President, and CEO had this to say about the importance of data and the threats posed by cyber-crime:

We believe that data is the phenomenon of our time. It is the world’s new natural resource. It is the new basis of competitive advantage, and it is transforming every profession and industry. If all of this is true—even inevitable—then cyber crime, by definition, is the greatest threat to every profession, every industry, every company in the world.

Steve Morgan, (Forbes, Nov. 24, 2015), “IBM’s CEO On Hackers: ‘Cyber Crime Is The Greatest Threat To Every Company In The World’”

At your firm, make sure you use qualified IT professionals to help ensure your data’s safety. Also, with the growing sophistication of international hackers, it is not a matter of if your data will be hacked, it is a matter of when. Have a disaster recovery plan in place, and it would be wise to have cybersecurity insurance in the event that some (or all) of your firm’s data is compromised.

William T. Sykes is a partner at Claggett & Sykes Law Firm and continues to vigorously represent the firm’s clients in state and federal courts.

Matthew S. Granda is the managing partner of Claggett & Sykes Law Firm. Matt served four years in the Marine Corps infantry and is a veteran of Operation Iraqi Freedom.


Trends in Tech for Lawyers

Lauren Calvert

By Lauren Calvert, Esq.

Technology has impacted every aspect of the legal field, from law firm and corporate practice to courtroom operation and document management. Its growth is far from slowing, as the sector saw $200 million in new investment in May and June of 2018 alone. Robert Ambrogi, “$200M In Two Months Says Investors No Longer Snubbing Legal Tech,” July 2, 2018, Above the Law, https://abovethelaw.com/2018/07/200m-in-two-months-says-investors-no-longer-snubbing-legal-tech/. The ABA Model Rule of Professional Conduct 1.1, Comment 8 makes it clear that a lawyer’s competence is tied to knowledge about technology related to his or her practice. Here are four quick tech trends to keep you in the know:

1. Technology assisted review (TAR) and artificial intelligence (AI)

Artificial intelligence and technology assisted review are tools for automating everything from case planning to document proofreading. Judicial decisions explicitly approving the use of TAR and AI have been issued in Arkansas, California, Delaware, Louisiana, Nebraska, New York, Tennessee, Virginia, and in tax court. See Rio Tinto Plc v. Vale S.A., 2015 U.S. Dist. LEXIS 24996, 2 (S.D.N.Y. Mar. 2, 2015)(collecting cases). Despite the benefits of these technologies in reducing costs, increasing efficiency, and courts’ acceptance of them, TAR still is not widely used: only 64 percent of respondents reported utilizing it in Norton Rose Fulbright’s 2017 Litigation Trends Annual Survey. Similarly, in the Blickstein Group’s 10th Annual Law Department Operations Survey, 66 percent of legal departments reported not using AI, with only about 50 percent expecting to use it in the coming three years. However, the legal profession is not known for having early adopters of the use of new technology, and estimates are conservative with regard to predictions about the implementation of technology in the legal sphere. Cloud storage and applications were considered too risky just a few years ago, but those reservations have disappeared today. The same is anticipated to hold true for TAR and AI, particularly when their financial benefits become more widely known.

2. Electronic discovery

The Nevada and Federal Rules of Civil Procedure make electronically stored information (ESI), such as e-mails, instant messages, voicemails, e-calendars, and data on handheld devices discoverable in litigation. The explosive growth of ESI has increased the cost and complexity of the discovery process, and transformed large-scale, complex litigation. The time-intensive process of reviewing and producing millions of pages of ESI has generated new litigation database management tools, allowing legal professionals to image, code, analyze, review, and manage massive amounts of ESI through electronic database discovery (EDD). For example, a mere 10 gigabytes of e-mail equates to approximately 30,000 documents. A firm can upload these documents to a secure, cloud-based platform, which then culls out up to 95 percent of the documents as irrelevant or non-responsive, leaving only 1,500 pages for a human lawyer to review.

3. Electronic information destruction

Disposition of electronic documents is incredibly complex and becoming more difficult every year. Electronic records are stored in many places outside document management software systems, such as web-based collaborative platforms, shared network drives, and individual computers. According to the Information Governance Initiative Annual Report 2015-2016 (accessible at https://iginitiative.com/wp-content/uploads/2015_IGI-Annual-Report_Final-digital-use.pdf), 94 percent of law firms identify records management as a key part of their information governance (IG), ranking it higher than e-discovery (86 percent), risk management (77 percent) and compliance (88 percent). Yet, over 70 percent of firms are using records management software that is outdated or unsupported, rendering them unable to reduce storage costs or mitigate litigation risk by eliminating old documents and records. During the past decade, the ease of storing digital data has resulted in the volume of data growing at an unprecedented rate. By some estimates, its compound average growth rate is 61.7 percent, and is expected to rise steeply over the next ten years. Darrell Mervau, “An IG Revolution Is Underway,” Law Technology Today, April 3, 2018, https://www.lawtechnologytoday.org/2018/04/an-ig-revolution-is-underway/. IG software allows legal professionals to manage their retention policies and apply those protocols directly to documents in different repositories. The software can auto-classify and apply retention policies to documents at the time of creation, as well as initiate document holds Disposition workflows can automate the review and destruction process.

4. Online legal communities, social media

The final tech trend gaining traction is the growth of online, lawyer-only legal communities. Closed Facebook or LinkedIn groups now provide law firms with opportunities to collaborate with lawyers all over the world, obtain answers to difficult questions, improve their legal skills, and learn more ways to better serve clients. Larger firms with world-wide offices can currently take advantage of internal enterprise social networking tools, such as Yammer or Workplace by Facebook, to set up an online legal community. The trend is not surprising. Last year, only 23 percent of firms did not maintain a professional presence on any social networks. Allison Shields, “Social Media and Blogging,” ABA TECHREPORT 2017, https://www.americanbar.org/groups/law_practice/publications/techreport/2017/social_media_blogging.html. Overall, 69 percent of lawyers used social media for professional development/networking in 2017, while 56 percent used it for client development. Because 27 percent of lawyers indicated a client retained their legal services directly or via referral as a result of their use of social networking sites for professional purposes, this trend is far from slowing down.

Lauren Calvert, Esq. is an associate at Messner Reeves LLP, where she practices general civil litigation. She previously has served as General and In-House Counsel to legal technology companies and maintains a passion for tech innovation.


Predatory Friending and Other Pitfalls for Lawyers Using Social Media

By John M. Naylor, Esq.

[PUBLISHER’S NOTE: The Clark County Bar Association (CCBA) provides the opportunity for Nevada lawyers to earn 1.0 Ethics of Continuing Legal Education (CLE) Credit for reading this article and completing the accompanying test. For the test and more information, see pages 22-29 of the print and PDF versions of the November 2018 issue of COMMUNIQUÉ]

John Naylor,

Lawyers regularly utilize social media as a means of marketing and as an investigative tool. As of 2017, about 76 percent of all law firms in the United States maintained some sort of an internet presence. Jessica Weltge and Myra McKenzie-Harris, Esq., The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and Avoid the Pitfalls of Modern Technology, American Bar Association Section of Labor and Employment Law, Ethic and Professional Responsibility Midwinter Meeting (March 24, 2017) (citation omitted), “ABA 2017 Report.” Ethical rules regarding an attorney’s use of social media, however, have not kept pace and the bar associations that address the issues tend to do so on a piecemeal basis.

This article focuses on two of the many areas that social media impacts. The first is to what extent do Nevada’s rules on lawyer advertising apply to social media outlets such as LinkedIn and Facebook. The second is when can an attorney use a social access request, commonly referred to as a “friend request,” to gain information about an opposing party or witness. Nevada has not specifically addressed these issues, but other bar associations have and offer guidance.

What exactly is social media?

Social media generally consists of any electronic communication used to share information, ideas, or personal messages. Dorothy M. Bollinger, Social Media and Employment Law: A Practitioner’s Primer, 20 TEMP. POL. & CIV. RTS. L. REV. 323 (2011). This includes online messaging and cell phone apps, Internet blogs, and social networking websites like LinkedIn, Facebook, Twitter, Google+, YouTube, Pinterest, and Instagram. “ABA 2017 Report,” p. 2.

Advertising

The 2018 amendments to advertising rules make clear that they apply to social media. Effective April 8, 2018, the Supreme Court of Nevada approved an amendment to NRPC 7.2 that included “public media” in the definition of advertising. Nev. S. Ct. ADKT 527, March 9, 2018. This certainly covers social media and a look to the model rules confirms that. The amendment brought NRPC 7.2 closer in line with ABA Model Rule 7.2, which the ABA Section of Labor and Employment Law considers to cover social media. “ABA 2017 Report,” pp. 14-15. Thus, a fair interpretation of Nevada’s rule similarly considers social media to be advertising.

The new guidelines accompanying the amendments appear to endorse this broad application of what is advertising. The State Bar’s proposed Lawyer Advertising Interpretive Guidelines (the “2018 Guidelines”) have been published for comment. As currently drafted, they do not limit NRPC 7.2’s reach when it comes to social media. Thus, all of the disclosures and requirements of NRPC 7.2(a) through (d) apply to blogs, Twitter feeds, LinkedIn pages, and other forms of an attorney’s social media presence. NRPC 7.2(b). More specifically, statements in social media regarding fees, use of non-attorneys on a case, years of experience, and jury verdicts require special disclosures under NRPC 7.2.

A second issue is whether the filing requirement of NRPC 7.2A applies to social media. The 2018 amendments mandate that attorneys submit to the State Bar for review “(1) a copy or recording of all advertisements disseminated in exchange for something of value; and (2) written or recorded communications the lawyer causes to be disseminated for the purpose of advertising legal services.” (NRPC 7.2A(a)(1) and (2)). The rule only excludes websites. (NRPC 7.2A(a)).
Subsection one would seemingly exclude no-cost to the user platforms for social media such as Facebook, Twitter, and a basic LinkedIn page. Indeed, the State Bar’s online submission filing portal for advertising under NRPC 7.2A only refers to “Social Media (if disseminated in exchange for something of value).” State Bar of Nevada website, https://www.nvbar.org/member-services-3895/lawyeradvertising/, accessed August 20, 2018).

Subsection two is broader, covering everything that is intended to be advertising. This would seemingly cover all social media that a firm or lawyer utilizes, and, therefore, triggers the filing requirement.

LinkedIn illustrates the tension between NRPC 7.2A and the usage of these platforms. The basic LinkedIn profile is free, meaning that an attorney need only create an account and supply what information they wish for the profile. NRPC 7.2A(1) would not apply because nothing is exchanged for value and the argument can be made that the purpose of the profile is nothing more than a directory listing with contact information.

LinkedIn, however, allows a subscriber to pay a monthly fee (in addition to its free service) to get alerts whenever someone is viewing their profile. As “public media,” the profile is advertising and is now potentially subject to the filing requirement because something of value is given.
Even if one could escape the requirements of NRPC 7.2A(1), subsection two would seemingly capture everything. Subsection two requires a determination of an attorney’s intent. Neither the rule nor the 2018 Guidelines offer any assistance in how to determine intent. Other jurisdictions, however, have attempted to address the issue. For example, in 2015, the New York City Bar Association determined that a LinkedIn page would be considered advertising subject to ABA Model Rules 7.1 through 7.5 if the following five factors were present: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising. N.Y. City Bar Assoc. Formal Opinion 2015-7 (December 30, 2015). It would be hard to imagine a LinkedIn page that did not meet all of these criteria, especially given that LinkedIn is generally viewed as a promotional tool and a way to tout one’s qualifications and network. Under these circumstances, the best practice would seem to be filing one’s LinkedIn page with the State Bar.

The ex parte friend request

Whether preparing a case or preparing to negotiate a contract, many attorneys look at the public information available on an adverse party’s Facebook page or other social media. Can you take it a step further by sending an adverse party a “friend” request? An accepted friend request typically opens the door to information that the author intended to keep out of the public eye. Some have dubbed this practice “predatory friending.” In Nevada, NRPC 4.2 prohibits an attorney from sending a friend request with any sort of a message to a represented party. But what about sending a simple friend request and nothing more to a represented party and seeing if they take the bait? Currently, there is no guidance as to whether this violates NRPC 4.2.
Other bar associations prohibit this practice. For example, the San Diego Bar Association concluded that an attorney could not send a friend request to a represented party. Ethics Opinion 2011-1, San Diego County Bar Legal Ethics Committee, May 24, 2011, “San Diego Opinion”. The San Diego Bar relied on California Rule of Professional Conduct 2-100 and ABA Model Rule 4.2, both of which prohibit an attorney from directly or indirectly communicating with an opposing party about the subject of the representation when that party is represented by counsel. Id. at III(A). These rules parallel NRPC 4.2. The San Diego Bar considered the argument that a friend request and nothing more does not involve the subject of the lawsuit or representation and is therefore permissible. The San Diego Bar flatly rejected this approach. Id. at III(3)(a).

The San Diego Bar also relied on ABA Model Rule 4.1(a), which is identical to NRPC 4.1(a) and prohibits lawyers from making false statements. Id. at III(B). The San Diego Bar found that sending a friend request without explaining its purpose is a deceptive act. Id. Even though the ABA has not formally adopted a position on the application of Model Rule 4.1, it recognizes that several jurisdictions have adopted advisory and formal opinions on the matter and recommends that practitioners be cautious before sending a friend request. “ABA 2017 Report,” pp. 24-25.
Can an attorney reach out to unrepresented parties or witnesses through a friend request? The San Diego Bar found that an attorney “should not” do this without fully identifying themselves, disclosing their affiliation, and disclosing the purpose of the request. San Diego Opinion, III(B). Other jurisdictions have taken it one step further. The New York State Bar’s Social Media Ethics Guidelines requires attorneys to use their full name and prohibits them from using a false profile to mask their identity. “Guideline 4.B, Social Media Ethics Guidelines of the Commercial and Federal Litigation of the New York State Bar Association” (Updated May 11, 2017). This rule also applies when attorneys reach out to witnesses. Id.

An attorney cannot get around the rule by having another person, such as a paralegal or private investigator send the friend request. An attorney’s duty of supervision under Model Rules 5.1 through 5.3, which were adopted in Nevada as NRPC 5.1 through 5.3, requires associates, staff attorneys, and paralegals to comply with any applicable guidelines. “ABA 2017 Report” pp. 10-11. Basically, this means that an attorney’s paralegal or investigator cannot create a false account to contact anyone.

Conclusion

The ethical implications of social media will continue to evolve, and counsel must be careful to consider all factors before using a social media platform for any purpose. This can be challenging because no governing body, including the ABA, has arrived at a comprehensive set of ethical rules for dealing with social media. In particular, Nevada has not yet adopted any specific rules or guidelines. Until Nevada does so, practitioners might wish to follow the most conservative approach available when utilizing social media.

John M. Naylor , Esq. has been licensed for 30 years and is a cofounder of Naylor & Braster, a Las Vegas law firm specializing in business litigation. Prior to founding the firm, he was a partner at Lionel Sawyer & Collins. Between 1995 and 1999, he was a judge advocate in the U.S. Air Force. He specialized in criminal prosecution and defense matters as well as representing the Air Force in contract disputes before the Armed Services Board of Contract Appeals.


*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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