The Massachusetts Supreme Judicial Court gave a boost to on-line legal education (and declined to bow down to the ABA) recently when it allowed a graduate of Concord Law School, an entirely on-line law school owned by Kaplan, Inc., to sit for the Massachusetts Bar Exam, despite a state rule that prohibits graduates from unaccredited law schools from taking the exam. The decision is available on-line (of course!).
The Massachusetts Supreme Judicial Court gave a boost to on-line legal education (and declined to bow down to the ABA) recently when it allowed a graduate of Concord Law School, an entirely on-line law school owned by Kaplan, Inc., to sit for the Massachusetts Bar Exam, despite a state rule that prohibits graduates from unaccredited law schools from taking the exam. Â The decision is available on-line (of course!).
The vast majority of state and territorial jurisdictions will only let students sit for the bar exam if they have graduated from an ABA-accredited law school. The idea is to set some minimum standards for legal education, such as the student-faculty ratio, the number of total credits, clinical education and writing requirements, etc. The standards are quite extensive, available here. The ABA only allows a total of 12 credits of on-line education in the course of obtaining a three-year law degree.
On-line schools argue that legal education could be 50% to 75% cheaper if it didn’t have to support multi-million dollar library collections, bricks and mortar school buildings, and faculty scholarship.  Unfortunately, getting an on-line degree and being admitted in California (which allows grads of unaccredited schools to sit for its exam) is of little use if your family later decides to move to one of the many states that won’t allow you to be admitted on motion or by exam because of the school from which you graduated.Â
The Massachusetts decision is written as a one-off: they didn’t find their rule regarding accredited schools unconstitutional or unenforceable, but they thought that the applicant was really smart (after all, they said, they read all his pro se briefs) and the ABA has recently announced that it will be reviewing its accreditation standards. The Court could not predict what the ABA would decide, but seemed very hopeful.  Hence, they gave the applicant a waiver of the usual requirements.Â
If more states follow Massachusetts, the whole rationale for the ABA’s rigid accreditation standards may start to erode. It looks as though there will be some pressure on the ABA to lead legal education into the 21st century.
Goliath gets poked in the eye is a post from the law firm marketing blog, Lawyerist.com
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Maine has become the latest state to take sides in the grudge match over whether it is ethical for lawyers to search electronic documents for metadata hidden beneath the bytes. Maine says no, joining New York (both the state and county bars), Florida, Alabama, and Arizona. The ABA (Formal Op. 06-442), Maryland, Colorado, and D.C. place the heavier burden on the party creating or sending the electronic document and permit recipient lawyers to search at will. Pennsylvania sort of punted.
Maine has become the latest state to take sides in the grudge match over whether it is ethical for lawyers to search electronic documents for metadata hidden beneath the bytes. Â Maine says no, joining New York (both the state and county bars), Florida, Alabama, and Arizona. Â The ABA (Formal Op. 06-442), Maryland, Colorado, and D.C. place the heavier burden on the party creating or sending the electronic document and permit recipient lawyers to search at will. Pennsylvania sort of punted.
So the score, if you will, is now 6 to 4 against searching for hidden gems, unless one gives extra points to the ABA.
For the uninitiated, all this gnashing of teeth is over the risks of transmitting documents embedded with “metadata� – information that does not appear on the computer screen or on the printed copy of the document but nevertheless lurks somewhere in the electronic skeleton of a document, particularly word processing documents. Even fillable PDF documents may contain information that was entered into various fields and deleted later. Mostly it’s boring stuff: the author’s name, the date the document was created, the number of versions, etc.
But we all know that some people are pretty sloppy with their technology. The tech-saavy recipient could spend some time exploring the inner reaches of the document, uncovering comments and redlined changes, in the hopes of finding a higher settlement number, a juicy undisclosed fact, or a dreaded admission against interest. Or could she?
Most large law firms, and even solo or small law firms, address the problem with software that automatically scrubs the metadata from electronic documents before they are launched into cyberspace. There are even some free scrubbers out there, such as Doc Scrubber (which I have not tested).  That prevents being the leaker of confidential information and makes your malpractice carrier happier. But it doesn’t address what one is allowed to do upon receiving documents from opposing counsel and other parties that may contain metadata. Hence, all these ethics opinions.
The “don’t look� jurisdictions take the moral high ground, “do unto others . . .� and all that. Lawyers should not be in the business of intruding on the sanctity of someone else’s attorney-client relationship. Shame on us for even thinking about it.
The “caveat emptor� jurisdictions put the burden on the sender to protect his or her client’s information, except perhaps where it’s obvious on the face of the document that privileged information has been inadvertently disclosed. The ABA, having tried the moral high ground in 1974 on the issue of lawyers secretly tape recording conversations, only to reverse it self in 2001, declined to go that route again.
Stay tuned, this battle does not appear to be over yet. In the meantime, it is safe to say that lawyers have an obligation to protect their clients’ confidential information and prevent its disclosure. Lawyers who use the red-lining and commenting tools in their word processing documents as a means of communicating with clients are at greater risk for disclosing confidential information through metadata than lawyers who merely transmit final copies of documents to clients and other parties. No rule requires lawyers to use document scrubbing software, but lawyers likely have a responsibility to educate themselves about the types of metadata that may be retained in documents and learn how to remove the data or convert the document to a form that will not contain metadata.
New salvo in metadata battle is a post from the law firm marketing blog, Lawyerist.com
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I’ll confess, I’m a threader. I have my mail program set so that when I respond to an e-mail, the previous posts become part of the new message. That way, after multiple exchanges with one person, I can keep just the most recent e-mail and delete all the earlier messages, leaving the entire thread intact in just one message.
I’ll confess, I’m a threader. I have my mail program set so that when I respond to an e-mail, the previous posts become part of the new message. That way, after multiple exchanges with one person, I can keep just the most recent e-mail and delete all the earlier messages, leaving the entire thread intact in just one message.
But after spending several hours trying to sort through hundreds of pages of a client’s e-mails, many of them duplicate threads and digressions from threads and some replies to one person and some reply-alls, my e-mail practices may be ripe for a new years resolution.
It’s not just that the long and multiple threads are difficult to follow (especially with all those disclaimers in them).  According to Magistrate Judge Susan Nelson (Minnesota Federal District Court), who spoke at a CLE in Minneapolis this past fall, long e-mail threads also create problems for parties trying to identify privileged documents in discovery. Often information in an e-mail that was intended to be privileged is missed during discovery and shows up in some other part of an e-mail thread, waiving the privilege as to that information. A federal district judge in Pennsylvania dealt with the same issue in November 2008 in Rhoads Industries v. Building Materials Corp.
So how can we better manage our threads? For starters, when you’re in an e-mail exchange with one person, delete the previous messages from your inbox, so there’s just one thread instead of several nearly identical ones.  If any of the e-mails had attachments, save the attachment to a document folder; e-mail is a terrible place to store documents anyway.  If you are one of several people to receive an e-mail and intend to leave out other people when you reply, change the subject line (“re:�) of the e-mail so that it will be clear that your e-mail is a branch of the original thread.
And if you feel you must write to the same group of people on an unrelated topic by hitting “reply to all,� change the subject line and delete all the prior posts that are unrelated to your new message.
Not all threading is bad — it’s difficult to track whether a client understood the legal analysis you provided by e-mail when they write back “got it� but your prior message has been deleted. But if we don’t start to do a better job managing our collection and storage of e-mail, we’re just looking for trouble down the road.
Delete that thread! is a post from the law firm marketing blog, Lawyerist.com
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