Technology Tips & Practice Pointers

Sponsored by The Professional Liability Fund OSB Professional Liability Fund Presents

May 16, 2017

Presented by Shelia Blackford & Hong Dao Practice Management Advisors | Attorneys

Handouts:

• PowerPoint Slides • Checklist for Scanning Client Files • How to Back up Your Computer • How to Auto‐Forward Oregon eCourt Messages in Outlook 2010 • Online Data Storage Providers • Saving Text Messages • Setting Up and Using Templates for Repetitive Emails in Outlook • Information Security Checklist for Small Businesses • Nuts and Bolts of Oregon eCourt • Rejected Filing and Relation Back • Retention of Documents by eFilers • ABA Technology Resources • Formal Ethics Opinion 2011‐188: Third Party Electronic Storage of Client Materials • Formal Ethics Opinion 2016‐191: Electronic‐only or “Paperless” Client Documents and Files

Additional PLF practice aids are available at www.osbplf.org.

Sheila Blackford received her BA from Mills College and her JD with Tax Law Concentration from University of the Pacific, McGeorge School of Law. A member of the Oregon State Bar since 2000, she is the former Editor-in-Chief of Law Practice, the magazine published by the American Bar Association Law Practice Management Division. She is a Fellow of the American Bar Foundation and a member of the ABA Women Rainmaker’s, the Law Practice Division Publication Board, eLawyering Taskforce Committee, and is a former member on the Division’s Council. She is a member of the OSB eCourt Task Force and the Public Service Advisory Committee. She has joined the adjunct faculty of Lewis & Clark Law School where she will teach Law Practice Management Fall 2017.

Ms. Blackford has been a Practice Management Advisor for the Oregon State Bar Professional Liability Fund since 2005. She has been a member of the Adjunct Faculty for the School of Law at University of Oregon, teaching a Law Practice Management course during the January Term. A former sole practitioner, she provides confidential practice management assistance to Oregon attorneys to reduce their risk of malpractice claims and ethics complaints. In addition to her legal experience, she has over 10 years of teaching and marketing experience.

Sheila Blackford is a frequent speaker about practice management for law-related organizations, including the Professional Liability Fund, the Oregon State Bar, the American Bar Association, and the Upper Law Society of Canada. She is author of Trust Accounting in One Hour For Lawyers, co-author of Paperless in One Hour For Lawyers and a contributing author to the Flying Solo, 5th Edition all published by the ABA Law Practice Management Division and is a contributing author to the Fee Agreement Compendium published by the Oregon State Bar and to the PLF law practice management handbooks. Her articles frequently appear in legal publications, including the Oregon State Bar Bulletin, In Brief, Law Practice Magazine and Law Practice TODAY, and LTN Law Technology News. In between articles, she writes for the PLF's inPractice blog and tweets technology and practice management tips on Twitter. To view her PLF blog posts, click here.

Hong Dao received a BA from the University of Denver and her JD from Drake University Law School. She is a practice management advisor for the Professional Liability Fund, providing confidential practice management assistance to Oregon attorneys to reduce their risk of malpractice claims, enhance their enjoyment of practicing law, and improve their client relationships through clear communication and efficient delivery of legal services.

Ms. Dao is a member of the Oregon State Bar, Oregon Women Lawyers, the Multnomah Bar Association, and the Oregon Asian Pacific American Bar Association. She is active in the Asian Pacific legal community in Oregon, is fluent in Vietnamese, and is the 2014 recipient of the Oregon State Bar Presidential Public Service Award.

Before joining the PLF as a practice management advisor in 2014, Ms. Dao worked as a staff attorney at the Oregon Law Center, presenting community education programs and representing, advising, and advocating for clients in employment, consumer, and housing law matters. Prior to that, she worked as a contractor with the Criminal Division of the U.S. Attorney’s Office. She has also served as adjunct instructor of business law at Portland Community College.

Technology Tips & Practice Pointers

Overwhelmed by Emails?

• Create folders & automatic rules • 4 Ds: Delete, Delegate, Defer, Do • Use email filing assistants

Email Encryption Made Easy

Problem: Risk of breaching confidentiality when emailing

Solution: Email encryption to reduce the risk • Cloudstar – http://mycloudstar.com/ • Citrix ShareFile – www.sharefile.com • HPE SecureMail – www.voltage.com

1 Secure Communication Encrypted Text Messaging: Signal | WhatsApp | Wickr | iMessage

Encrypted Voice/Video Calling: Signal | FaceTime

https://www.eff.org/secure-messaging-scorecard/

Cloud Security

Encrypt before uploading to the Cloud.

What works? • Viivo https://viivo.com/ • Citrix ShareFile for Legal https://www.sharefile.com/industries/legal

Trick or Treat?

Malware • Emails from spoofed addresses • Email attachments • Pop-up windows

Frauds & Scams • Trust your instincts • Verify the $$

2 Task Management So much to do, so much to keep track of.

#1 worry: Fear of dropping the ball #1 Rx: Tools for managing tasks • Paper, Pen & the To-Do List • Tasks in Gmail & Microsoft Outlook • Apps: Due, Listaway, Remember the Milk, Wonderlist

Keep Track of Time

Use a big clock – for smartphone and tablet

Losing Billable Hours?

• Record time promptly • Come up with a system • Use software

TimeClock

3 Choosing the Right Product

• ConsumerSearch http://www.consumersearch.com/ • ABA Legal Technology Resource Center http://www.americanbar.org/

Mobile Scanning Turn your phone into a portable scanner

CamScanner Evernote Scannable

Paperless Annotation

• Microsoft Word: Use Track Changes & Comments • PDF: Even Adobe Reader lets you make comments • Apps to Annotate PDFs:  GoodNotes,  iAnnotate PDF,  Readdle PDF Expert

4 Storing & Organizing Online Contents

Print & Save Webpages

• Make any web page print friendly • Remove annoying graphics • Add it to your browser • Get a button for your website

http://www.printfriendly.com/

Sharing Files

Upload & Share Instant Transfer

5 Visual Marketing

• Microsoft Windows Paint • Microsoft Office – PowerPoint, Word, Excel • GIMP https://www.gimp.org/ • Paint.NET http://www.getpaint.net/ • Google Nik Collection https://www.google.com/nikcollection/ • PhotoPlus http://www.serif.com/free-photo-editing-software/

Marketing Tip: Say thank you! • Handwritten Notes • Personalized cards – www.touchnote.com • eCards – www.123greetings.com

eCourt Support

OJCIN Subscriber Support M-F: 8 am to 5 pm 800-858-9658 [email protected]

OJD Technical Support M-F: 7 am to 6 pm 503-986-5582 or 877-826-5010 [email protected]

Tyler Technologies – Odyssey File & Serve Support M-F: 7 am to 9 (Central Time) 800-297-5377 [email protected]

6 eCourt Self Help

https://oregon.tylerhost.net/ofsweb

Finding the Rules

Courtesy of the OJD, you can easily find:

UTCRs SLRs ORS OARs And more!

http://courts.oregon.gov/OJD/rules/pages/index.aspx

Resources for Research

BarBooks Fastcase • Free publications • Free legal research • Over 180 sources • State and Federal • Oregon perspective • Fast, relevant results • Practice tips • Customer support

7 Search Strategies

• Documents • Websites • PLF Searches – Global – In Brief

Blogs for Lawyers

Legal Blogs Legal Tech Blogs

Screen Captures

Capture images to share. • Print Screen • Windows Snipping Tool • Snagit https://www.techsmith.com/snagit.html

8 Outlook Shortcuts

• Automate common or repetitive tasks

• Apply multiple actions at the same time to email messages

Home > Quick Steps >More > Manage Quick Steps > Modify > Actions

Conferencing Made Easy

Conference Calling Video & Voice Calls • ConferenceCalling.com • Citrix GoToMeeting • InfiniteConferencing.com • Cisco WebEx • UberConference.com • Zoom.us

Oregon Lawyers’ Conference Room 520 SW Yamhill |Suite 1025 |Portland

https://oregonlawyersconferenceroom.acuityscheduling.com/schedule.php

9 Statewide Meeting Rooms

Options for Meeting Space in the Metro Area | Statewide

Project Management Made Easy When it’s too big for a To-Do list

Try these options: • Basecamp 3 • SmartSheet • Trello

Staying Organized

Calendar Windows Smartphone features “Sticky notes app and apps Notes”

10 Need to inventory files? Grab your iPhone or iPad and visit the App Store!

Deadline Management

Use multiple reminders Deadline calculating software  1 month  1 week  3 days

Tickle periodic reviews

Planning Ahead The duty to protect your clients’ interests:

• Understand your duty www.osbar.org | Formal Opinion 2005-129 • Review our publications and practice aids www.osbplf.org • Consider an “ICE” app for your phone http://www.pcmag.com/article2/0,2817,2489237,00.asp

11 PLF Resources Searchable Books

https://www.osbplf.org/practice-management/publications.html

PLF Resources Free & Low Cost CLEs • In-person • Live webcasts • Streaming [MP4] • Downloadable [MP3] • CD-DVD • Over 90 programs www.osbplf.org > CLE www.oaap.org > CLEs/Workshops

PLF Resources Discounts

Business Productivity News Monitoring • Corel WordPerfect X7 Service • Corel PDF Fusion • Zama • Corel Perfect Authority Practice Management Conflict Checking Software Software • Clio • Client Conflict Check • CosmoLex Editing for Legal • MyCase Profession • Rocket Matter • WordRake

12 PLF Resources Practice Management Services

• Setting Up Practice • Client Relations • Technology • Time Management • Trust Accounting

https://www.osbplf.org/practice-management/services.html

Sheila Blackford [email protected] Hong Dao [email protected] Rachel Edwards [email protected] Jennifer Meisberger [email protected]

and confidential

13 A CHECKLIST FOR IMAGING CLIENT FILES AND DISPOSING OF ORIGINAL DOCUMENTS

Imaging Client Files for Digital Storage

Before implementing a program to scan and digitally store client files, ask yourself: what kind of documents do you wish to store electronically and why? Do you want to scan closed client files with the intention of shredding the paper afterwards or is the goal to go paperless from the start and eliminate or drastically reduce the need to maintain a physical file? In either case, consider the following:

1. If you are scanning closed files, are notes and memoranda included? By default, the client is entitled to attorney notes and memoranda unless exceptions apply. See OSB Formal Ethics Opinion No. 2005-125. The Professional Liability Fund (PLF) encourages lawyers to keep complete copies of their files.

2. If the goal is to go paperless from the outset, are electronic notes and memoranda preserved? See OSB Formal Ethics Opinion No. 2005-125.

3. Unsigned word processing documents are usually saved in their native format and stored in a subfolder for each client. How will you retain these documents once they are signed? There are several options:

 Create a PDF from your word processing document and apply an authenticated digital signature. Retain the word processing document and the authenticated, signed PDF.  Create a PDF from your word processing document and use Adobe Acrobat’s custom stamp tool to insert a scanned image of your signature. Retain the word processing document and the PDF with your scanned signature.  Create a jpeg of your scanned signature and insert it directly into your word processing document. Print the signed document to PDF. (Use File, Print to PDF so your signature is flattened.)  Keeping your word processing document intact, print a hard copy, sign it, scan it, and store it as a PDF.

Note: See item 7 below for a discussion on saving documents in their native format. Also, note that you may elect to append the signed page to your original document when creating a PDF to store in your client file. See Adobe Acrobat Help for more information on creating and using authenticated digital signatures and custom stamps. If you intend to scan your signature and insert it into word processing or PDF documents, you will need image-editing software to crop the scanned signature and make the background transparent.

4. If imaged files are to be joined with documents that are electronic in origin, are all electronic document and database sources considered in the capture process? (Documents and databases residing on network servers, Web servers, Extranets, Intranets, the Internet, local hard drives of firm PCs, laptops, home computers, zip drives, disks, portable memory sticks and flash drives, PDAs and Smartphones, or other media.)

5. Are documents being scanned at the lowest acceptable resolution and optimized afterwards to reduce file size? The resolution on most scanners can be adjusted quite easily. Adobe Acrobat has an optimization feature which helps further reduce file size after scanning. (In Acrobat 8 or 9, click on Document, Reduce File Size… In Acrobat X or XI, choose File, Save As Reduced Size PDF.)

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14 A CHECKLIST FOR IMAGING CLIENT FILES AND DISPOSING OF ORIGINAL DOCUMENTS

6. Are scanned documents reviewed for quality and completeness of electronic capture?

7. Is the shelf life of the chosen electronic format acceptable? Saving digital file content using Adobe’s archival standard (PDF/A) assures that files created in earlier versions of Acrobat are guaranteed to be readable in future versions of PDF. This is not a given if you attempt to keep files in their native application (Microsoft® Word and WordPerfect® come to mind.) To learn more about the PDF/A format, see Reagan DeWitt-Henderson, “PDF/A – PDF for Archiving,” In Brief (June 2011). Also, see the posts at The Acrolaw Blog, Acrobat for Legal Professionals. PDF /A is the preferred format for documents filed electronically with the courts.

8. Is your storage media up to the task? Storing scanned files on a hard drive or server that is properly backed up (see item 14 below) is preferable to using CDs or DVDs. Compact or digital video discs are made from layers of materials that can delaminate or oxidize over time. Environmental exposure, improper storage, or improper handling all present opportunities for this kind of media to degrade. To read more about this phenomena, see the article, “Protect Your CDs and DVDs,” from the State Library and Archives of Florida.

9. Are imaged files electronically Bates-stamped or indexed? Organized in subfiles? Bates stamping, indexing, and organization of documents into subfiles will make it much easier to access needed information. Case management or document management software can make this process easier. Bates stamping can also be done in Adobe Acrobat.

10. Scanners are usually sold with OCR (optical character reader) software. Without this technology, scanned documents are static images that cannot be searched. Is OCR software used as part of the scanning process to ensure that documents are searchable? If OCR software did not come packaged with your scanner, Adobe Acrobat has built-in text recognition capability. Search Help in Acrobat for step-by-step instructions on applying OCR during or after the scanning process. WordPerfect X6 and later also has built-in OCR capability. See Joe Kissell, “Building the Paperless Office” for an in-depth discussion of software, scanner settings, use of OCR technology, and more. The Acrolaw Blog also has helpful posts on using Acrobat for optical character recognition.

11. Are privileged litigation documents clearly marked in the electronic file?

12. Are documents not subject to client disclosure clearly marked in the electronic file? See Helen Hierschbiel, “Client Files, Revisited,” Oregon State Bar Bulletin (June 2006).

13. Are electronic files stored securely with password protection, encryption, or other security as needed? If you possess electronic data containing “consumer personal information” within the meaning of the Oregon Consumer Identity Theft Protection Act (ORS 646A.600 to 646A.628) you are required to develop, implement, and maintain safeguards to protect the security and disposal of the data. Failure to do so can result in civil penalties. For more information, see “2007 Legislation Alerts,” In Brief (November 2007) and Kimi Nam, “Protect Client Information from Identity Theft,” In Brief, (August 2008).

14. Are electronic files backed up daily (or more frequently)? Are backups stored on and off-site? Are the backups tested periodically? Are backups secured (password protected, encrypted)? For a thorough discussion on backing up computer data and applications, see the PLF practice aid, How to Backup Your Computer.

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15 A CHECKLIST FOR IMAGING CLIENT FILES AND DISPOSING OF ORIGINAL DOCUMENTS

15. Is an electronic file retention policy in place and enforced? Regardless of how files are retained, the PLF recommends that all client files be kept a minimum of 10 years. Some files may need to be kept longer. For more information, see the PLF practice aid, File Retention and Destruction.

16. The lawyer responsible for a given matter should sign-off before electronic data is destroyed. Permanent destruction of electronic data requires special expertise. For more information, see the PLF practice aid, File Retention and Destruction.

17. Scanning files can be expensive and time-consuming. Any odd-sized paper (legal size documents, phone message slips, post-it notes, fragile carbon copies, etc.) will require special handling. All paper clips and staples must be removed. Folded and hole-punched documents may jam the scanner. Be prepared to outsource or devote adequate staff time to major scanning projects. If you truly want to go paperless, or simply have less paper, start with active files or begin scanning files as you close them. Form good paper-processing habits, such as retaining client emails electronically rather than printing hard copies.

For more information on retaining client emails, see the PLF practice aid, Documenting Email as Part of the Client File. Email archiving is easy with Adobe Acrobat 9 or later. See Beverly Michaelis, “Technology Tips – Using Acrobat 9 in the Law Office,” In Brief (August 2008) and these posts at The Acrolaw Blog.

18. Is the firm aware of ethical considerations in going paperless? See Helen Hierschbiel, “Going Paperless,” Oregon State Bar Bulletin, April 2009.

19. Is the firm aware of restrictions imposed by statute or rule that require retention of certain documents in original paper form? For more information, see the PLF practice aid, File Retention and Destruction, available at www.osbplf.org.

Disposition of Original Documents

1. Satisfy yourself that the imaging process has integrity (no missing or incomplete documents).

2. Communicate file retention policies to clients. Ideally, the issue of record retention should be addressed in the initial client fee agreement or engagement letter and again at the time of file closing. The PLF has sample fee agreement and engagement letters, as well as a sample closing letter, which incorporate file retention language. These practice aids are located at on the PLF Web site.

3. Review each file individually. Wholesale rules cannot apply due to discrepancies in file content. (See discussion below.)

4. Does the imaged file contain any client property? Documents, photographs, receipts, cancelled checks, or other materials provided by the client are generally considered property of the client and cannot be destroyed. However, this area requires judgment. It may be difficult to distinguish between one-of-a-kind original documents versus copies of documents provided by the client.

Do your files contain client photographs? While it may be possible to scan and store a photograph as a high-quality digital image which can be printed at any time, the original nevertheless belongs to the client, is his/her property, and may be of special sentimental value.

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16 A CHECKLIST FOR IMAGING CLIENT FILES AND DISPOSING OF ORIGINAL DOCUMENTS

The PLF recommends that lawyers refrain from accepting original client property, or at a minimum, return client property at the time of file closing. For more information, see “Closing Files,” a chapter in A Guide to Setting Up and Running Your Law Office, published by the PLF. The PLF also offers a File Closing Checklist. The book and the checklist may be found on the PLF Web site.

5. Does the file contain any original documents whose authenticity could be disputed? Documents that have particular legal importance? Documents that are enforceable or have value only in paper form? Examples include:

 Original Wills  Promissory Notes  Original Powers of Attorney  Contracts  Original Directives to Physicians  Fee Agreements (to pursue collection or  Deeds defend yourself in a fee dispute)  Car Titles

Does your practice area require that you retain certain original documents? For example:

 Affidavit of Custodian – ORS 126.725(2).  Original signed petitions, lists, schedules, statements, amendments, or electronic filing declarations in US Bankruptcy Court – Oregon LBR 5005-4(e).  Documents that contain the original signature of a person other than the “filer” in Oregon eCourt must be retained for 30 days. UTCR 21.120 amended September 29, 2014 pursuant to Chief Justice Order 14-049.

This is not an exhaustive list. Conduct your own appropriate legal research and review files carefully. Know the rules and statutory requirements that apply to your practice area.

If you keep original wills, 40 years must elapse before the will can be disposed of. ORS 112.815 provides: “An attorney who has custody of a will may dispose of the will in accordance with ORS 112.820 if: (1) The attorney is licensed to practice law in the state of Oregon; (2) At least 40 years has elapsed since execution of the will; (3) The attorney does not know and after diligent inquiry cannot ascertain the address of the testator; and (4) The will is not subject to a contract to make a will or devise or not to revoke a will or devise.”

6. File disposition must comply with applicable laws and the Oregon Rules of Professional Conduct. The Fair and Accurate Credit Transaction Act (FACTA) Disposal Rule (the Rule) requires any person who maintains or possesses “consumer information” for a business purpose to properly dispose of such information by taking “reasonable measures” to protect against unauthorized access to or use of the information in connection with its disposal. The Rule defines “consumer information” as any information about an individual that is in or derived from a consumer report. Although the Rule doesn’t specifically refer to lawyers, it may be interpreted to apply to lawyers, and the practices specified in the Rule would safeguard clients’ confidential information.

“Reasonable measures” for disposal under the Rule are (1) burning, pulverizing, or shredding physical documents; (2) erasing or physically destroying electronic media; and (3) entering into a contract with a document disposal service. FACTA took effect June 1, 2005. Also, see Oregon State Bar Legal Ethics Op 2005-141.

7. If your files contain personal health information, you must also comply with the Health Insurance Portability and Accountability Act (HIPAA) rules and regulations. For more information, See Kelly T.

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17 A CHECKLIST FOR IMAGING CLIENT FILES AND DISPOSING OF ORIGINAL DOCUMENTS

Hagan, “Business Associate, Esq.: HIPAA’s New Normal,” In Brief (September 2013). Note: HIPAA rules also apply to PHI stored electronically.

8. When choosing a document or media disposal service, select a company certified by the National Association for Information Destruction (NAID). NAID members securely destroy materials in compliance with FACTA, HIPAA, and the Gramm-Leach-Bliley Acts. Casually discarded information is a risk and a liability.

9. The lawyer responsible for a given matter should sign-off before the client’s paper file is destroyed.

Resources

Professional Liability Fund Review technology forms and In Brief articles available from the PLF, as well as CLE offerings. Visit the PLF Web site for more information.

American Bar Association The ABA offers many print and online resources with an ongoing focus on technology, including the paperless office. These include Law Practice magazine, and the Legal Technology Resource Center. For an overview of resources, visit the ABA Law Practice Division.

Association for Records Management ARMA International is a not-for-profit professional association and the authority on governing information as a strategic asset. ARMA International offers invaluable resources such as: legislative and regulatory updates; standards and best practices; technology trends and applications; live and web-based education; marketplace news and analysis; books & videos on managing records and information; a global network of members.

National Association for Information Destruction NAID® is the international trade association for companies providing information destruction services. Suppliers of products, equipment, and services to destruction companies are also eligible for membership. NAID's mission is to promote the information destruction industry and the standards and ethics of its member companies. Locate a secure data destruction provider on the NAID® Web site.

Acrobat for Legal Professionals The Acrolaw Blog is a resource for lawyers, law firms, paralegals, legal IT pros and anyone interested in the use of Acrobat in the legal community. Search the blog for helpful tips or videos on many topics, including scanning, OCR, and PDF/A for archiving.

IMPORTANT NOTICES

This material is provided for informational purposes only and does not establish, report, or create the standard of care for attorneys in Oregon, nor does it represent a complete analysis of the topics presented. Readers should conduct their own appropriate legal research. The information presented does not represent legal advice. This information may not be republished, sold, or used in any other form without the written consent of the Oregon State Bar Professional Liability Fund except that permission is granted for Oregon lawyers to use and modify these materials for use in their own practices. © [2015] OSB Professional Liability Fund.

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HOW TO BACK UP YOUR COMPUTER

Disasters happen to someone else somewhere else. Too bad this isn’t true. Despite being trained – if not genetically hardwired – to anticipate the worst, many lawyers fail to have an adequate backup and recovery system to protect all the important information entrusted to their computers. The information stored on your computer is truly the lifeline of your practice. Safeguarding this information is critical to your practice’s survival and an ethical obligation you owe to your clients.

Look around you. If your computer crashed or was ruined in a disaster, how much would the downtime cost you? Even a relatively minor calamity can wreak devastation on your law practice. Just consider the prospect of recreating all your documents, forms, client billing, time records, calendar entries, contacts, and emails. Scary, isn’t it? If you aren’t safeguarding your data on a regular basis, keep reading so you can learn how to get a system in place. Even if you have the support of an Information Technology (IT) department for your law office, keep reading so that you understand what they are doing and can apply it to your home computer.

DATA BACKUP OR DISK IMAGING?

The term “data backup” refers to backing up or making a duplicate copy of selected information stored on your computer. The term “disk imaging” refers to making a duplicate copy of everything on your computer – operating system, software applications, program customizations, folders, and files – not just the data. Disk imaging is the better choice. Why is disk imaging so important? Imagine that your computer hard drive has crashed. Everything is gone. Luckily, you took the time to back up your data. However, before you can access it, you must first reinstall your operating system, programs, security patches, updates, etc. Only then can your computer read the data you saved. If you need further convincing, take a moment to look at all the programs you have on your computer. If the prospect of reloading all those programs seems daunting – as it should – consider buying a disk imaging program for your office. A disk imaging program is inexpensive, easy to use, and allows you to get back up and running quickly. (See Resources at the end of this article.) It will prove its worth in gold, or at least in many, many billable hours.

CHOOSING A BACKUP AND RECOVERY SYSTEM

A good backup and recovery system has three elements: (1) automatic backup software; (2) a reliable storage device that is kept offsite; and (3) someone who can be trusted to ensure that the system is working. A good backup and recovery system will let you sleep easier knowing that your valuable information is protected.

1. Make It Automatic. The key to the software is that it must work well for the user. Otherwise, the user won’t use it. Automatic backup software is the safest choice because you don’t have to fit backing up into your day. Instead of an annoying pop-up window asking if you want to back up now or later, it just quickly and quietly does the backup automatically. It doesn’t allow you to elbow it aside when you’re rushed and taking the short view of your priority list. The automatic software program you choose should be easy to set up. Typically, once you install the program, an interactive setup allows you to specify what you want backed up, when, and how often. Select a program that has a restore feature so that any archived information can be restored to your computer.

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2. Storage Devices. Once you have backed up all the data and programs on your hard drive, you will need to find a place to store the data until you back up again. Dedicating an external hard drive to the backup process is far superior to downloading the backup files onto numerous discs. A second removable hard drive or other external storage device is an affordable convenience; it will allow you to make a duplicate backup to be stored offsite, with the original locked in your law office’s fireproof safe or file cabinet. When buying an external hard drive, purchase the largest capacity you can reasonably afford. Especially in areas prone to natural disasters, the safest storage of backup information is offsite, preferably in another geographic location. The importance of this topic was underscored by the devastation delivered by Hurricanes Katrina and Rita. Using Internet-based backup services is one possible solution. If you choose this option, read and understand Oregon Formal Opinion No. 2011-188, Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials. Also see Odds & Ends, Safeguarding Client Information in a Digital World by Helen Hierschbiel, Oregon State Bar Bulletin (July 2010).

3. Disk Imaging /System Backup Policies and Procedures. If you choose a disk imaging program, your computer backup and recovery policy is simple – just set the frequency of the backup. How often should you perform backups? The frequency should be dictated by your comfort level with risking any data created or received since your last backup. Most technology advisors recommend that you back up your new file information once daily, back up your full system once weekly, ship backups out of the geographic area semi-weekly (if living in a disaster-prone area), and do periodic restores semi-weekly or monthly. Your policy should also designate the person who is responsible for performing periodic test restores to be sure the program is working. Part of ensuring that the system is working is to periodically check to see whether you can restore a file and then compare it carefully with the file you backed up. The restored information should be identical to the backed-up information. The time to check is before you need the information. A recovered file that is unreadable because it is corrupt is not a surprise you want in the eleventh hour of any case.

SELECTING YOUR BACKUP SOFTWARE

When you compare backup software products, look for one that allows you to: (1) recover entire operating systems and/or individual files; (2) schedule backups to occur automatically; (3) customize the timing of backups based on the occurrence of events such as billing; (4) back up and restore quickly; and (5) test the restoration process. To recover entire operating systems, applications, and data, use disk imaging software. If you need assistance with these or other practice management questions, call the PLF at 503-639-6911 or 1-800- 452-1639.

RESOURCES

To Comparison Shop: Cyberguys.com – www.cyberguys.com PriceGrabber.com – www.pricegrabber.com Google Shopping - http://www.google.com/shopping

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For Product Reviews and Articles: Law Technology Today Resource Center (ABA) – Data Backups, SaaS (cloud computing), and Ethics of Online Backups: http://www.lawtechnologytoday.org/2012/10/5-steps-to-a-better-backup-strategy/ http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/databackupfyi.html http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/saas.html http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/OBSethicsfyi.html Law Practice Today – http://www.lawpracticetoday.org/ Law Technology News – www.lawtechnologynews.com Legal Ethics Forum – www.legalethicsforum.com Backup Review – a top 25 list of online backup providers (updated monthly) – http://www.backupreview.info/ CNet.com – www.cnet.com PC Magazine online – www.pcmagazine.com

Disk Imaging/System Backup Software: Windows Acronis True Image – http://www.acronis.com/ Paragon products – http://www.drive-backup.com/ Norton products – www.norton.com O & O DiskImage - http://www.oo-software.com/home/en/

Mac Carbon Copy Cloner - http://www.bombich.com/ Time Machine – built into Mac OS, version X or later. Intego Personal Backup for Mac - http://download.cnet.com/Intego-Personal-Backup/3000-2242_4-27044.html Drop DMG – http://www.macupdate.com/app/mac/7099/dropdmg

Hard Drive Clones: SATDOCK22RE – http://us.startech.com/

Online Data Storage Resources (Cloud Computing/SaaS): Backup Review – a top 25 list of remote backup providers (updated monthly) – http://www.backupreview.info/

Carbonite – www.carbonite.com Files Anywhere – www.filesanywhere.com CrashPlan – www.crashplan.com Iron Mountain – www.ironmountain.com Seagate Data Protection – Mozy – www.mozy.com (ABA Member discounts) http://www.seagate.com/services-software/cloud- VaultLogix - http://www.vaultlogix.com/ services/

NOTE: This information does not constitute an endorsement of a particular product or vendor. Attorneys who elect to use online data storage resources should carefully review Oregon Formal Opinion No. 2011-188 and conduct their own appropriate research.

IMPORTANT NOTICES

[Rev 8/2015] 21 PROFESSIONAL LIABILITY FUND (HOW TO BACK UP YOUR COMPUTER) HOW TO AUTO-FORWARD OREGON ECOURT MESSAGES AND MARK THEM AS HIGH IN IMPORTANCE USING OUTLOOK 2010 AS AN EXAMPLE

In the Oregon eCourt system, court notices (hearings, trial dates, entry of judgment) are sent from the Oregon Judicial Department using the domain @ojd.state.or.us. Notices regarding submitted, accepted, or rejected fillings are sent from the Tyler Technologies File and Service system using the domain @tylerhost.net. In order to copy staff or other lawyers on all eCourt notices, create rules for both domains.

Here are step-by-step instructions for creating a rule in Outlook 2010 to mark all messages sent from @ojd.state.or.us as important and auto forward copies to specific people (staff, other lawyers). Repeat these steps to create a second rule for messages sent from @tylerhost.net.

The concepts for rule creation set out in this example will apply when auto-forwarding e-mail in other versions of Outlook, in Gmail, or in other e-mail programs such as Windows Live Mail, Thunderbird or Apple Mail.

1. Click the Home tab in the ribbon. 2. From the toolbar, select Rules ▼ Manage Rules & Alerts … 3. Select the New Rule… button. 4. The Rules Wizard launches. 5. Locate the heading “Start from a blank rule.” 6. Select “Apply rule to messages I receive.” 7. Click Next ► 8. In Step 1 - Select condition(s) find the condition “with specific words in the sender’s address” and check the box. 9. In Step 2 - Edit the rule description by clicking on the specific words link. 10. The Search Text box appears. In the top line, enter @ojd.state.or.us. (without the period) 11. Click Add, click OK, then click Next ► 12. In Step 1 – Select conditions(s) find the condition “mark it as importance” and check the box. 13. In Step 1 – Select conditions(s) find the condition “forward it to people or public group” and check the box. 14. In Step 2, Edit the rule description. Click first on the importance link. “Specify the importance to set” appears. Select “High” from the pull-down menu and click OK. 17. Next, click on the people or public group. In the To► box, type the e-mail address(es) of the person(s) to whom you wish to forward the e-mail. Separate multiple e-mail addresses by semi-colons. Tip: you can also select e-mail addresses from your Address Book list. 18. At this stage, you can also elect to move eCourt messages “to a specified folder.” If you choose this condition, be sure to edit the rule description to select the folder destination. 19. When done adding e-mail addresses, click OK, and then click Next. 20. The next step in the Rule allows you to set exceptions. There are none. Click Next. 21. In Step 1 – Specify a name for this rule, such as “Forwarding Oregon eCourt messages.” 22. In Step 2 – Setup rule options. “Turn on this rule” is checked by default. Check other boxes as desired. 23. In Step 3 – Review the rule description and edit if necessary. Select Finish to complete the rule. Click OK to close the Rules and Alerts box. 24. REPEAT THESE STEPS TO CREATE A SECOND RULE FOR @tylerhost.net. Notices from File and Serve (submitted, accepted, and rejected filings) come from Tyler Technologies @tylerhost.net. Court notices (hearings, trial dates, entry of judgment) are sent from @ojd.state.or.us.

Tips

 If using Microsoft Exchange Server or Exchange Online set up rules only when you are connected to your Exchange server, not when you are offline.  It should not be necessary at Step 8 to choose the conditions “sent only to me” or “where my name is in the To box.” The rule will automatically mark all messages received from @ojd.state.or.us or @tylerhost.net as important and auto-forward them to the persons specified. [Rev 4/2015] PROFESSIONAL LIABILITY FUND (eCOURT – AUTO-FORWARD MESSAGES) 22

IMPORTANT NOTICES

[Rev 4/2015] PROFESSIONAL LIABILITY FUND (eCOURT – AUTO-FORWARD MESSAGES) 23

ONLINE DATA STORAGE PROVIDERS

An online data storage provider is an Internet-based service that backs up your entire system automatically and stores the data on the Internet in a secure form and location. You may see this process referred to as storing your data “in the cloud,” Web-based data storage, or “software as a service” (SaaS). Online data storage providers were previously referred to as “Application Service Providers” (ASPs).

This online data storage method for backup and recovery has generated much discussion in legal circles. Using Internet-based backup services is one possible solution; it is not a required solution. Before choosing this option, read and understand Oregon Formal Opinion No. 2011-188, Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials. Also see Odds & Ends, Safeguarding Client Information in a Digital World by Helen Hierschbiel, Oregon State Bar Bulletin (July 2010). See also Cloud Caution: Look Before You Leap by Joshua Poje, YourABA e-newsletter, ABA Legal Technology Resource Center (2010).Online data storage can provide access to documents in a way that offsite backup cannot – especially if your offsite backup is stored in your same town or locale. This is one of the many tragic lessons learned in the wake of Hurricane Katrina, when one-third of the lawyers in Louisiana lost their offices, libraries, computers, client files, and homes. Even if the lawyers had backup devices or CDs at their home or other local sites, few were able to access the backups. The ability of displaced lawyers to retrieve their client documents and financial data through the use of online storage provides a powerful incentive to consider this alternative.

Online backup for PCs and servers can provide up-to-the-minute data backup protection; however, many lawyers have reservations about using online data storage. Generally, the security issues associated with storage are the main concern. Placing client information in the hands of third parties, the solvency of the provider, the security of the storage location, the method of storage, and the preservation of confidentiality are high on the list of reasonable concerns considered by lawyers. These concerns apply whether lawyers are storing paper files in a document storage facility or storing electronic data through an online provider. With a paper document storage facility, once you are confident that the facility either has no access to your stored documents or maintains confidentiality and privacy, you turn over the boxes of client files for storage and periodic retrieval. Placing electronic client data in the hands of third parties who remotely upload it to their Web site is really not any different. Proper security is crucial for each. A hacker can access an electronic site that isn’t secure; a thief can break into and enter a paper storage facility that isn’t secure.

Both a physical storage center and an online storage center provide the user with a special key. An online provider’s security can be so restrictive that the user may be the only person who has the “key” – an aspect of storage that requires thought, planning, and safeguarding. There may be no electronic “locksmith” to help you enter your “storage facility” if the key is lost. Therefore, if you are the only key holder, you should store the key (usually a password) locally somewhere that is secure, such as a safe deposit box, and also somewhere secure in another geographic area. Don’t rely on your memory – this is a key (password) you hopefully will never have to use.

When choosing an online data backup, storage, and restore system, you may want to ask these questions:

 Does the system offer the highest form of security data encryption available in the United States: Advanced Encryption Standard (AES)?  Does the system offer a private encryption key that is held only by your office?

[Rev. 9/2015] PROFESSIONAL LIABILITY FUND (ONLINE DATA STORAGE PROVIDERS) 24

 Does the system encrypt all transmitted data at the source?  Is data encrypted both at rest and in transit?  Does the system provide continuous, automatic backups?  Does the system have the capability to back up time-sensitive data like open files, e-mails, and databases?  Does the system provide full coverage for complete data protection and recovery, including backup, offsite storage, ability to restore data over the network or dedicated storage device, online remote recovery, and offline archiving and recovery?  Does the system provide instant file restores 24 hours a day, 7 days a week, 365 days a year?  Does the system provide automatic notification of exceptions or problems encountered?  Does the system provide detailed activity reports?  Is the online data server in a geographic location that is separate from your locale?  Does the online data storage provider take precautions for disasters in its own area, such as backing up on a server in another location?  Is the online data storage provider’s physical site secure? (The highest level of security is a Tier One Data Center Facility.)  Is there a secure way for your firm to access the stored information if someone loses the law firm encryption key?  What access does the cloud service provider have to your data? Be sure to review the Terms of Service (TOS) or End User Licensing Agreement (EULA) or Service Level Agreement (SLA). Make no assumptions.  Does the cloud service provider actually store your data, or is it stored elsewhere? Review any agreement between the cloud service provider and its data storage facility. Make no assumptions.

Online Data Storage Resources (Cloud Computing/SaaS): Backup Review – a top 25 list of remote backup providers (updated monthly) – http://www.backupreview.info/ Carbonite – www.carbonite.com CrashPlan – www.crashplan.com EVault – www.evault.com FilesAnywhere – www.filesanywhere.com Iron Mountain – www.ironmountain.com Mozy – www.mozy.com (ABA Member discounts) VaultLogix - http://www.dataprotection.com/

For additional resources, see the practice aid titled, How to Back Up Your Computer, located in this Technology folder.

______

IMPORTANT NOTICES

[Rev. 9/2015] PROFESSIONAL LIABILITY FUND (ONLINE DATA STORAGE PROVIDERS) 25 SAVING TEXT MESSAGES TO AND FROM CLIENTS

Most lawyers have a procedure in place to save client e-mail. If you don’t have a procedure, see “Documenting Email as Part of the Client File,” www.osbplf.org.

If you are texting your clients, your text conversations should also be saved. This poses a challenge, as text messages are often deleted from your phone, usually within a few days. The solution is to download the messages to your computer where they can be saved to your client’s electronic file.

Here are some informative articles that offer different solutions, such as individual forwarding of texts by e-mail, simultaneous back-ups, and bulk archiving of text messages: http://www.soundfeelings.com/free/save_text_messages.htm and http://www.ehow.com/how_2162963_save-text-messages-cell.html.

If you are an iPhone or iPad user, use the “print screen” or “screen capture” feature:

 While viewing the text message you want to save, press and hold the Home button at the bottom of your device.  While holding the Home button, also press the Sleep/Wake key on the top of the device.  The iPhone/iPod screen will flash momentarily to indicate that a screenshot has been captured.  The screenshot of your text message will be saved to your iPhone or iPod Photos folder.  E-mail or transfer the captured text message and print to paper or PDF.

Or download an app from the iTunes store to archive your text messages. Options include PhoneView http://www.ecamm.com/mac/phoneview/, CopyTrans http://www.copytrans.net/support/how-to-save-iphone-text-messages-to-word/, or iExplorer https://www.macroplant.com/iexplorer/features/export-iphone-messages- voicemail-contacts/.

There are a variety of apps available for Android users: http://mashable.com/2013/10/13/android-texts-backup/.

IMPORTANT NOTICES

[Rev 09/2015] PROFESSIONAL LIABILITY FUND (SAVING TEXT MESSAGES) 26

FORMAL OPINION NO 2011-188 [REVISED 2015] Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials

Facts: Law Firm contracts with third-party vendor to store client files and documents online on remote server so that Lawyer and/or Client could access the documents over the Internet from any remote location.

Question: May Lawyer do so?

Conclusion: Yes, qualified.

Discussion: With certain limited exceptions, the Oregon Rules of Professional Conduct require a lawyer to keep client information confidential. See Oregon RPC 1.6.1 In addition, Oregon RPC 5.3 provides:

1 Oregon RPC 1.6 provides: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to disclose the intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime; (2) to prevent reasonably certain death or substantial bodily harm; (3) to secure legal advice about the lawyer’s compliance with these Rules;

2016 Revision 27 Formal Opinion No 2011-188

With respect to a nonlawyer employed or retained, supervised or directed by a lawyer:

(4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; (5) to comply with other law, court order, or as permitted by these Rules; or (6) in connection with the sale of a law practice under Rule 1.17 or to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm. In those circumstances, a lawyer may disclose with respect to each affected client the client’s identity, the identities of any adverse parties, the nature and extent of the legal services involved, and fee and payment information, but only if the information revealed would not compromise the attorney-client privilege or otherwise prejudice any of the clients. The lawyer or lawyers receiving the information shall have the same responsibilities as the disclosing lawyer to preserve the information regardless of the outcome of the contemplated transaction. (7) to comply with the terms of a diversion agreement, probation, conditional reinstatement or conditional admission pursuant to BR 2.10, BR 6.2, BR 8.7 or Rule for Admission Rule 6.15. A lawyer serving as a monitor of another lawyer on diversion, probation, conditional reinstatement or conditional admission shall have the same responsibilities as the monitored lawyer to preserve information relating to the representation of the monitored lawyer’s clients, except to the extent reasonably necessary to carry out the monitoring lawyer’s responsibilities under the terms of the diversion, probation, conditional reinstatement or conditional admission and in any proceeding relating thereto. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

2016 Revision 28 Formal Opinion No 2011-188

(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (b) except as provided by Rule 8.4(b), a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a nonlawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Lawyer may store client materials on a third-party server as long as Lawyer complies with the duties of competence and confidentiality to reasonably keep the client’s information secure within a given situation.2 To do so, the lawyer must take reasonable steps to ensure that the storage company will reliably secure client data and keep information confidential.3 See Oregon RPC 1.6(c). Under certain circumstances, this may be satisfied through a third-party vendor’s compliance with industry

2 Some call the factual scenario presented above “cloud computing.” See Richard Acello, Get Your Head in the Cloud, 96-Apr ABA Journal 28, 28–29 (April 2010) (providing that “cloud computing” is a “sophisticated form of remote electronic data storage on the Internet” and “[u]nlike traditional methods that maintain data on a computer or server at a law office or other place of business, data stored ‘in the cloud’ is kept on large servers located elsewhere and maintained by a vendor”). 3 In 2014, leaked documents indicated that several intelligence agencies had the capability of obtaining electronic data and monitoring electronic communications between, among others, attorneys and clients through highly sophisticated methods beyond the capabilities of the general public. Oregon RPC 1.6(c) would not require an attorney to protect a client’s data against this type of advanced interception, as it only requires an attorney to take reasonable steps to secure client data. Nevertheless, an attorney may want to take additional security precautions if he or she handles clients or matters that involve national security interests.

2016 Revision

29 Formal Opinion No 2011-188 standards relating to confidentiality and security, provided that those industry standards meet the minimum requirements imposed on the Lawyer by the Oregon Rules of Professional Conduct. This may include, among other things, ensuring the service agreement requires the vendor to preserve the confidentiality and security of the materials. It may also require that vendor notify Lawyer of any nonauthorized third-party access to the materials. Lawyer should also investigate how the vendor backs up and stores its data and metadata to ensure compliance with the Lawyer’s duties.4 Although the third-party vendor may have reasonable protective measures in place to safeguard the client materials, the reasonableness of the steps taken will be measured against the technology “available at the time to secure data against unintentional disclosure.”5 As technology advances, the third-party vendor’s protective measures may become less secure or obsolete over time.6 Accordingly, Lawyer may be required to

4 See OSB Formal Ethics Op No 2005-141 (rev 2015), which provides: As long as Law Firm makes reasonable efforts to ensure that the recycling company’s conduct is compatible with Law Firm’s obligation to protect client information, the proposed conduct is permissible. Reasonable efforts include, at least, instructing the recycling company about Law Firm’s duties pursuant to Oregon RPC 1.6 and obtaining its agreement to treat all materials appropriately. See also OSB Formal Ethics Op No 2005-129 (rev 2014); OSB Formal Ethics Op No 2005-44. 5 See New Jersey Ethics Op No 701 (discussing electronic storage and access to files). 6 See Arizona Ethics Op No 09-04 (discussing confidentiality, maintaining client files, electronic storage, and the Internet).

2016 Revision 30 Formal Opinion No 2011-188

reevaluate the protective measures used by the third-party vendor to safeguard the client materials.7

Approved by Board of Governors, April 2015.

7 A lawyer’s obligation in the event of a breach of security of confidential materials is outside the scope of this opinion.

COMMENT: For additional information on this general topic and other related subjects, see The Ethical Oregon Lawyer § 6.2-1 (confidentiality), § 13.3-3 (employment of nonlawyers), § 16.4-5(c) (third-party electronic storage of client materials) (OSB Legal Pubs 2015); and Restatement (Third) of the Law Governing Lawyers §§ 59–60 (2000) (supplemented periodically).

2016 Revision 31

Information Security Checklist for Small Businesses

Management

 Do you have written security policies and have they been reviewed and signed by all employees?  Do you have onboarding/out-processing documents/checklists for hiring and terminating employees?  Do you have a disaster recovery plan?  Do you have a computer software and hardware asset inventory list and network diagram?  Are there industry standards for which your firm must be compliant, such as PCI, HIPAA, HITECH or Sarbanes-Oxley?  Do you have a list of third-party vendors that your business is using, including infrastructure access and contact information?  Do your employees receive annual training on information security and safe computing practices?  Do you have a Bring Your Own Device (BYOD) policy?  Do you have a Bring Your Own Network (BYON) policy?  Do you have an Incident Response Plan in the event of a data breach or a disaster?

Technology

 Are your systems protected by enterprise grade security software?  Is the security software up-to-date, license current, and actively scanning on a regular basis?  Are all of the Windows-based firewalls enabled?  Is your e-mail being filtered to protect users from spam, viruses and phishing attempts?  Is a password policy in place requiring strong, 14-character or longer passwords? Are passwords, especially network log-in passwords, required to be changed every 30 days? Is password reuse prohibited via technology for 12 months or longer?  Are computer systems up-to-date with security patches?  Is software being updated on a regular basis and with updates from the manufacturer?  Have you upgraded all software that is no longer supported?

 Is your data getting backed up on a regular basis? Are you performing test restorations of backups?  Is your backup engineered so that it cannot be encrypted by ransomware?  Is data on mobile devices encrypted (smartphones, laptops, tablets)?  Do you require passphrases/PINs on mobile devices that connect to your network?  Are your mobile devices protected with security software?  Is your wireless network using WPA2 encryption?  Do you have a guest wireless network so you can restrict access to your business data?  Have the default usernames and passwords for your computers, equipment and software been changed?  Are your computers running Microsoft Windows 7 or newer, servers Microsoft Server 2008 or newer?  Do you have a redundant/backup Internet connection, in the event your business loses connectivity?  Can you remotely wipe data from mobile devices if they are lost or stolen?

If you find yourself needing assistance with answering the questions in this checklist, and/or would like to set up a complimentary one-hour security meeting to go over the results of this checklist, please contact:

Michael Maschke, CISSP Chief Executive Officer Phone: (703)359-0700 E-mail: [email protected]

Sensei Enterprises, Inc. is a nationally known digital forensics, information security and information technology company located in Fairfax, Virginia. Sensei provides complimentary one-hour security informational meetings, as well as security assessments and recommendations for all types of businesses.

703-359-0700 | [email protected] |www.senseient.com

Oregon State Bar Bulletin — FEBRUARY/MARCH 2015

osbar.org /publications/bulletin/15febmar/ecourt.html

Related Sidebar Articles 34 1/6 Oregon eCourt Glossary

On Dec. 1, 2014, eCourt became mandatory in 11 counties in Oregon: Yamhill, Crook, Jefferson, Linn, Jackson, Clatsop, Columbia, Tillamook, Benton, Polk and Multnomah. As this article goes to press, Douglas, Josephine and Marion counties are next in the implementation queue.

For practitioners who are accustomed to electronic filing in the federal system, the transition to Oregon eCourt and mandatory eFiling will be relatively painless. Filers in the federal system are already familiar with converting documents to PDF, conforming signatures and entering party information using an electronic filing system.

For nonfederal court practitioners, the conversion to Oregon eCourt is more daunting. Here are some practice tips to ease the transition:

Steps to Get eCourt Ready

Get a Debit/Credit Card to Pay eCourt Fees

Get a credit or debit card that can be used to pay court fees online. The Odyssey eFile and Serve System accepts Visa, MasterCard and Discover. Learn more about eCourt filing fees by reading “eCourt Filing Fees and IOLTA,” available on the Professional Liability Fund website, www.osbplf.org. Select Forms, and then choose the eCourt category. Additional eCourt resources can be found at this location as well.

Create an eCourt Account

Create an eCourt account by registering with Odyssey eFile and Serve at https://oregon.tylerhost.net/ Registration only involves a few steps. Choose an account type, enter your name, contact information and email address, then create a password. Sole practitioners should register as a “Firm Administrator.” If you need assistance setting up your account, contact Odyssey eFile and Serve Technical Support at the support number noted below. (See Troubleshooting.)

Check your email inbox for an activation link from @tyler host.net. Click on the activation link to finish creating your account. (“Whitelist” tylerhost.net as a safe sender and/or domain name in your spam filters.)

Then log in to Odyssey eFile and Serve with your email address and newly created password, click on the Firm Administrator tab, and set up a payment account using your credit or debit card information. (Note: if you are a firm member who created an individual user account, this step was completed by your firm administrator.)

Purchase the Necessary Hardware and Software

Next, you’ll need to check your technology. To be an eFiler, you will need a scanner, conversion software and OCR software. The hardware and software requirements are summarized on the OSB website at www.osbar.org/courts/efiling.html and are detailed below.

Learn Before Filing

Sign up for one of the free, one-hour training sessions on how to use Odyssey eFile and Serve. A complete class listing is available online here: http://bit.ly/1xXmbZy. You can ask questions during the session, and you may take the training as many times as you want.

Watch the Oregon ecourt update presented on Nov. 19, 2014 — available for Oregon lawyers to stream or download free of charge on the PLF website, www.osbplf.org. Select CLE, then Past CLE. This jointly sponsored OSB CLE/PLF program provides an overview of the Uniform Trial Court Rules (UTCRs) and includes a question- and-answer session with Oregon Judicial Department staff.

35 2/6 Read Chapter 21 of the UTCRs, “Filing and Service by Electronic Means,” and the Chief Justice Orders adopting out-of-cycle amendments, available on the OJD website at http://1.usa.gov/1BXybLU.

Get an OJCIN Account to Access eCourt Documents

Get an OJCIN Account. OJCIN includes OJIN, OECI and ACMS. If you want online access to electronically filed documents or wish to view the Register of Actions for entry dates of judgments or orders (called “created dates” in the OECI system), you must have an OJCIN account. Subscriptions are $35 per month.

Stay Current with Developments

Monitor the OSB and PLF websites for developments. Updates from the OSB may be found here: www.osbar.org/courts/efiling.html. The PLF uses a variety of sources to keep lawyers informed, including articles in the PLF In Brief, practice alerts and practice management forms.

Using the discussion from the Oregon ecourt update, OSB staff prepared answers to frequently asked eCourt questions. This information can be found on the PLF website at http:// bit.ly/1AWR5nj.

Purchasing a Scanner

All eCourt filers will need a scanner for pages or documents that contain ink signatures, such as an affidavit signed by your client. (Lawyers “sign” eCourt documents by using a conformed signature: s/ Lawyer Name.)

A scanner is also needed to create digital copies of attachments to pleadings (e.g., a scanned copy of a last will and testament attached to a petition for probate). A digital copy of the will is eFiled with the petition; the original will must be filed conventionally with the court within seven days of eFiling the petition.

Practice Tip:When you conventionally file documents like an original will, include a cover letter or note to the court clerk with the proper case name and number. Otherwise, the clerk won’t be able to identify the case associated with your original document.

Mac users can search for “top rated scanners” at MacWorld. If you have the Windows operating system, check out the online reviews at PC Magazine. The Fujitsu ScanSnap ix500 was voted the best scanner of the year in 2013 by MacWorld and comes bundled with Acrobat XI Standard for Windows. You can — and should — upgrade to Acrobat XI Pro for the reasons noted below.

A multifunction printer/scanner/copier may also be a good choice depending on your needs. One popular brand is Brother: www.brother-usa.com/MFC/, but check the sources listed above for product reviews of these all-in-one devices.

When you’ve chosen a scanner make and model, use sites or apps like PriceGrabber, and Google Shopping, to find the best prices. For the best head-to-head comparison, include shipping costs. If a deal seems too good to be true, it may be. Only buy from reputable, well-known sources.

Purchasing PDF Conversion Software with OCR Capability

All documents submitted via the eCourt system must be text-searchable PDFs. PDF conversion software with Optical Character Recognition (OCR) capability turns your scanned documents into text-searchable PDFs. The free Adobe Reader software cannot do this. While it is possible to use separate PDF and OCR products, it is more efficient to find a program that performs both functions.

For PDF conversion software, nothing beats Adobe Acrobat XI. While it may seem that you have no choice but to subscribe to Acrobat on a monthly basis, you can still purchase the product outright. Call sales at (800) 585-0774 or visit www.adobe.com/products/acrobatpro.html for details. A subscription to Acrobat XI Pro is $19.99 per month. 36 3/6 Subscriptions are locked in for one year and include all upgrades free of charge plus free telephone support. If you purchase Acrobat XI Pro outright, you must buy upgrades separately. Free telephone support ends in 30 days, although other support options remain available.

PrimoPDF, and Nuance Power PDF Advanced,are worth a look, too, but they don’t have all the bells and whistles of Acrobat.

Use PDF/OCR software to: create searchable PDFs of scanned pleading documents; create searchable PDFs of scanned attachments to pleading documents; and create searchable PDFs of scanned signature pages or signed documents. (Text on the page will be searchable; signatures will not.)

As noted above, lawyers sign eCourt documents using a conformed signature: s/ Lawyer Name. If you are eFiling a document containing signatures other than your own, you must scan the signature page or the entire document, then OCR before eFiling.

Mastering the Tech to Make Your Life Easier

Convert to PDF Directly from a Word Processing Application

When you convert to PDF directly from Word, WordPerfect or OpenOffice, your document is automatically text searchable. There is no need to print and scan your document, convert it to PDF and OCR it.

Printing to PDF Automatically Scrubs Metadata and Reduces File Size

When you install PDF software, a PDF printer is created in your printer list. Choose File > Print > to create a PDF from your word processing program. Follow these steps: select File > Print; find the PDF printer in your printer list (Adobe PDF, for example); click Print; give your document a name; and save it in the desired location. When you create a PDF by selecting File > Save As > PDF or by selecting File > Publish to PDF, the metadata in your word processing document is converted into metadata in your PDF. (This is avoidable only if you scrub the metadata first.) Additionally, files that are “published” to PDF are about 80 percent larger than documents that are “printed” to PDF. To learn more about metadata and metadata removal, order the PLF CLE “Metadata: Complying with Oregon Formal Opinion 2011-187” from the PLF website. Select CLE, then Past CLE.

Digital Pleading Templates Save Time and Money

Digital pleading templates are the way to go. If you are printing the body of your document on numbered pleading paper, you will need to scan and OCR your documents for eFiling. A digital pleading template saves this step — the pleading numbers and footer with your name, address, bar number, etc. are part of the document. If you are not familiar with digital pleading templates, check out these options from Microsoft: http://office.microsoft.com/en- us/templates/?CTT=97. WordPerfect users can read about pleading templates and macros here: http://bit.ly/1Cfgw0C and here: http://corl.co/1IHl5Tv. Be sure to conform all templates to meet Oregon court rules. Assistance with pleading templates is available from the PLF practice management advisers: https://www.osbplf.org/practice-management/practice-management-advisors.html.

Submitting Your First eCourt Filing

Manage the stress and anxiety of your first eCourt filing by taking these steps:

First, give yourself extra time. Until you become familiar with the eFiling system, the first filing or two might be a little nerve-wracking. Give yourself a cushion of extra time. Don’t create pressure by waiting until the deadline date to file a document. If your filing is rejected, you will need to seek relation back to cure the missed deadline.

Instead, file well in advance. If your filing is rejected, you will have time to fix the problem and refile. And you will spare yourself unnecessary anxiety. 37 4/6 Second, file during business hours when support is available. The Odyssey eFile and Serve system is available 24 hours a day, seven days a week. While it may be tempting to submit a filing at 10 p.m. Friday night, technical support staff are not available to assist you if something goes awry. File during regular business hours when Odyssey eFile and Serve Technical Support from Tyler Technologies can assist you.

Technical Support can walk you through initiating a new filing, filing into an existing case and eServing parties in a case. Technical support can also use “GoToAssist” to take control of your computer and help you complete an eFiling. Keep the support number handy (800) 297-5377, and don’t hesitate to use it.

Last but not least, reach out to experienced colleagues. If you know a colleague who has used the Odyssey eFile and Serve system, ask for pointers. eCourt is live in about one-third of all Oregon circuit courts and has been implemented in a handful of other counties for almost two years; practitioners there may be able to answer questions or act as a resource. If you don’t know of someone who has personally used the system, posting to an OSB listserv or contacting a resource lawyer through the Oregon State Bar Lawyer-to-Lawyer program (Lawyer Referral and Information Services, www.osbar.org). may be an option. (Note: eCourt is not a specific resource category in the Lawyer-to-Lawyer program, but General Litigation is.)

Troubleshooting

Don’t struggle on your own! Call Odyssey eFile and Serve free technical support at (800) 297-5377, Monday through Friday, 7 a.m. to 9 p.m. Central Time (5 a.m. to 7 p.m. Pacific Time). In addition to the assistance described above, technical support can help with browser error messages, registering your account and payment account troubleshooting.

As this article goes to print, there is a known issue with Nuance Power PDF Advanced (Nuance), one of the PDF programs mentioned above. When a judge attempts to sign a PDF created with Nuance, the signature jumps to the top of the document or off the page. Presently, the best workaround is to save documents as a PDF/A before filing. This appears to overcome the conflict with the court’s signing software.

PDF/A is a special file format defined by the International Organization for Standardization (ISO). It is used for long- term archiving of electronic documents. You can read more about filing documents in PDF/A format at the “Acrobat for Legal Professionals” blog written by Rick Borstein: http://blogs.adobe.com/acrolaw/category/pdfa-pdf-for- archiving/.

It is worth noting that Nuance works well in every other respect for converting and filing PDFs in the eCourt system. Oregon Judicial Department staff are aware of the signing issue and are working with the vendor to resolve it.

Using the Knowledge Base

You can find quite a bit of useful information in the Odyssey eFile and Serve Knowledge Base, which is divided into these categories: Administration, Court Contact, eFiling, eService, Notifications, and Support and Training.

Under Administration, learn about attorney management, fees, firm information, passwords, payment accounts, reconciliation, registration and user management. Under Court Contact, find telephone numbers and other contact information for some of the courts, including Multnomah, Yamhill, Crook and Clatsop Counties. eFiling provides information on the active locations for eCourt and describes the filing process, document status and how to create templates in the eFiling workspace. Under eService, read answers to commonly asked questions, such as, Where do I find proof of service for a filing I submitted? (Also see Notifications.) Access the Knowledge Base at http://content.tylerhost.net/helpor/selfhelp/national.

ABOUT THE AUTHOR 38 5/6 The author is a practice management adviser with the OSB Professional Liability Fund. She blogs at http://oregonlawpracticemanagement.com/ and can be reached at (503) 639-6911 or by email, [email protected].

— return to top — return to Table of Contents

39 6/6 OREGON ECOURT REJECTED FILINGS AND RELATION BACK

The rules for electronic filing deadlines in Oregon eCourt are set forth in UTCR 21.080. See Chief Justice Orders 14-012 and 14-049 dated March 31, 2014 and September 29, 2014, respectively, adopting out-of-cycle amendments. Among the most important are the provisions concerning rejected filings and relation back.

Accepted Filings Relate Back to the Date and Time Received

“If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document, thereby indicating the date and time of filing of the document. When the court accepts a document for filing, the electronic filing system sends an email to the filer, unless the filer has elected through system settings not to receive the email.” UTCR 21.080(4). [See the rule for other provisions.]

What Happens When a Document is Rejected

“If the court rejects a document submitted electronically for filing, the electronic filing system will send an email to the filer that explains why the court rejected the document, unless the filer has elected through system settings not to receive the email. The email will include a hyperlink to the document.” UTCR 21.080(5).

Practice Tip: Leave the default system settings alone to ensure you will receive rejection notices. Rejection notices are sent from Tyler Technologies, @tylerhost.net not from @ojd.state.or.us.

Can I Resubmit a Rejected Filing?

The short answer is “Yes.” But resubmitted documents will only receive relation-back if certain conditions are met.

Getting Relation Back When a Filing is Rejected (also known as) What if I’m Up Against the Statute of Limitations?

A filer who resubmits a document may request, as part of the resubmission, that the date of filing of the resubmitted document relate back to the date of submission of the original document to meet filing requirements. In the case of a last minute filing to beat the statute of limitations, this will be critical. However, relation back is ONLY available if the following conditions are met:

First, the filer must resubmit the document within 3 days of the date of rejection. “If the third day following rejection is not a judicial day, then the filer may resubmit the filing … the next judicial day.” Resubmission means “submission of the document through the electronic filing system … or physical delivery of the document to the court.” UTCR 21.080(5)(a).

Second, a filer who resubmits a document for purposes of relation back must include a cover letter that contains the following:

a) the date of the original submission b) the date of the rejection

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40 c) an explanation of the reason the filer is requesting that the date of filing relate back to the original submission d) the words "RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED" must be in the subject line of the cover letter.” UTCR 21.080(5)(a)(i).

Third, if the resubmission is filed electronically the words "RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED" must be included in the Filing Comments Field. UTCR 21.080(5)(a)(ii).

Practice Tip: Use the specific language set forth in the rule and enter it in ALL CAPS.

Objecting to Relation Back

“A responding party may object to a request (for relation back) within the time limits as provided by law for the type of document being filed. For the purpose of calculating the time for objection provided by law under this subsection, if applicable, the date of filing is the date that the document was resubmitted to the court under subsection (a) of this section.” UTCR 21.080(5)(b).

Filings Rejected due to Temporary System Unavailability, Errors in Transmission, or Technical Problems

UTCR 21.080(6) provides:

If the eFiling system is temporarily unavailable or if an error in the transmission of the document or other technical problem prevents the eFiling system from receiving a document, the court may, upon satisfactory proof, permit the filing date of the document to relate back to the date that the eFiler first attempted to file the document to meet filing requirements. Technical problems with the filer's equipment or attempted transmission within the filer's control will not generally excuse an untimely filing.

(a) A filer seeking relation-back of the filing date due to system unavailability or transmission error described in this section must comply with the requirements in subsection (5)(a) of this rule.

(i) The cover letter described in subsection (5)(a)(i) must include the date of the original attempted submission and the date that the filer was notified that the submission was not successful, and explain the reason for requesting that the date of filing relate back to the original submission, with the words "RESUBMISSION OF FILING, SUBMISSION UNSUCCESSFUL, RELATION- BACK DATE OF FILING REQUESTED" in the subject line of the cover letter."

(ii) The Filing Comment field notification for an electronic resubmission described in subsection (5)(a)(ii) must include the words "RESUBMISSION OF FILING, SUBMISSION UNSUCCESSFUL, RELATION-BACK DATE OF FILING REQUESTED."

(iii) The filer may include supporting exhibits that substantiate the system malfunction together with the filer's cover letter.

(b) A responding party may object in the same manner and subject to the same time calculations as in subsection (5)(b) of this rule.

Adopted out-of-cycle September 29, 2014 pursuant to Chief Justice Order 14-049.

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41 Other Things to Know about UTCR 21.080 eFiling is Available 24/7

“A filer may use the electronic filing system at any time, except when the electronic filing system is temporarily unavailable.” UTCR 21.080(1).

Filing Deadlines - Generally

“The filing deadline for any document filed electronically is 11:59:59 p.m. in the time zone where the court is located on the day the document must be filed.” UTCR 21.080(2).

When is a Document “Submitted?”

“The court considers a document submitted for an electronic filing when the electronic filing system receives the document. The electronic filing system will send an email to the filer that includes the date and time of receipt, unless the filer has elected through system settings not to receive the email.” UTCR 21.080(3).

Avoiding Rejected Filings

Give documents meaningful file names so they are easily identified and distinguished. Carefully review information entered into the eFiling system, including the document selected for uploading. When filing is complete, check the confirmation.

Be aware of applicable file size limitations (25 MB in Oregon). Jurisdictions vary, sometimes significantly. If you attempt to upload a document that is too large, your filing will be rejected and you may miss a deadline. Adobe Acrobat can help you properly split and label large files for uploading to eFiling systems.

Keep your credit card information current with the court. Required fees must be paid when documents are electronically filed. If your card has expired and the fees are not paid, your filing will be rejected even if the document was uploaded prior to the deadline.

Avoid the most common e-filing mistakes:  Entering incorrect party, event, or filing codes  Selecting the wrong case or location  Failing to associate the attorney with the filing party  Improperly filing exhibits – see the limitations in UTCR 21.070  Including sensitive or confidential information  Failing to file single, unified PDFs  Missing information – signatures missing or no party information entered  Submitting illegible documents – PDFs that are not text-searchable or PDFs scanned upside down  eFiling documents that must be filed conventionally under UTCR 21.070  Failing to pay fees or paying incorrect fees

Leave default system settings alone to ensure you will receive rejection notices. See the discussion above, “What Happens When a Document is Rejected” under UTCR 21.080(5).

Don’t eFile documents at the last minute. eFiling is a somewhat tedious process: you must log in, enter the appropriate field codes, pay applicable fees, select and possibly split your documents for filing, and

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42 so on. If you lose your Internet connection, your computer crashes or you encounter other technical difficulties, there is no time for recovery. Upload documents during regular business hours when technical support staff are available and you have sufficient time to remedy any technical glitches.

Train Now to Avoid Problems Later

Above all, get trained. User guides, reference guides, and rules can be found here. Free Web training sessions and self-study online training are available here.

Schedule a presentation on Oregon eCourt for your organization or agency. Call or e-mail:

Oregon Judicial Department Office of Education, Training and Outreach 503-986-5911 [email protected]

Technical Support

Oregon Judicial Department Help Desk – Monday through Friday 7:00 am to 6:00 pm 503-986-5582 or 1-800-922-7391 [email protected]

OJIN Online Subscriber/Business Support – Monday through Friday 8:00 am to 5:00 pm 1-800-858-9658 [email protected]

File & Service/eFiling User Support – Monday through Friday 7:00 am to 7:00 pm Tyler Technologies 1-800-297-5377 [email protected]

Original source: www.oregonlawpracticemanagement.com

IMPORTANT NOTICES

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43 OREGON ECOURT RETENTION OF DOCUMENTS BY FILERS – UTCR 21.120

UTCR 21.120 provides:

(1) Unless the court orders otherwise, if a filer electronically files an image of a document that contains the original signature of a person other than the filer, the filer must retain the document in the filer’s possession in its original paper form for no less than 30 days.

(2) When a filer electronically files a document described in section (1) of this rule, the filer certifies by filing that, to the best of the filer’s knowledge after appropriate inquiry, the signature purporting to be that of the signer is in fact that of the signer.

See Chief Justice Order 14-049 dated September 29, 2014 adopting out-of-cycle amendments to the Uniform Trial Court Rules. Former UTCR 21.120 required that filers retain such documents in original paper form for 10 years.

“Filer” means a person registered with the electronic filing system who submits a document for filing with the court.” UTCR 21.010(6).

Other Statutes and Rules May Require Retention of Original Paper Documents

Paperless practitioners should take note of other statutes or rules that require retention of original paper documents. Examples include the Affidavit of Custodian executed when a settlement agreement is reached on behalf of a minor (ORS 126.725(2)) and certain documents filed in US Bankruptcy Court (see Oregon Local Bankruptcy Court Rule 5005-4(e)). For more information, consult the PLF practice aids, File Retention and Destruction and Checklist for Scanning Client Files, available on the PLF Web site.

This is not an exhaustive list. Conduct your own appropriate legal research to identify other instances where original paper documents must (or should) be retained.

Original Source: www.oregonlawpraticemanagement.com.

IMPORTANT NOTICES

[Rev. 3/2015] Page 1 PROFESSIONAL LIABILITY FUND (OREGON eCOURT RETENTION OF DOCUMENTS) 44 ABA TECHNOLOGY RESOURCES

The American Bar Association (ABA) has many resources for those interested in learning about technology.

Legal Technology Resource Center

An excellent place to start is the Legal Technology Resource Center (LTRC): http://www.americanbar.org/groups/departments_offices/legal_technology_resources.html.

Many of the resources found at the LTRC site are available to members and non-members alike. For example:

Technology Charts and Overviews: http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/ charts_fyis.html.

Articles about Technology: http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/ articles.html.

Free Full-Text Online Law Review/Journal Search: http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/ free_journal_search.html.

Check back often and browse all the resources.

Law Technology Today Blog

Law Technology Today is the official legal technology blog from the ABA Legal Technology Resource Center (LTRC). Law Technology Today provides lawyers and other legal professionals with current, practical and innovative content developed by some of the leading voices on legal technology. Visit http://www.lawtechnologytoday.org/ for more information.

Topics include:  Tutorials & Demos  Hardware - Essential Equipment  Software - In & Out of the Cloud  Security - Protect Your Practice  Marketing - Social Media & More

Law Practice TODAY – free ABA Webzine

The Professional Liability Fund is a syndicator of the monthly digital publication, Law Practice TODAY, published by the Law Practice Division of the ABA. Law Practice TODAY strives to bring lawyers the most current information and trends in the legal industry by delivering anecdotes from professionals in the field of law. Nearly every issue of Law Practice

[Rev 6/2015] PROFESSIONAL LIABILITY FUND (ABA TECHNOLOGY RESOURCES) 45 ABA TECHNOLOGY RESOURCES

TODAY contains an article on technology issues. You can find links to the latest issue of Law Practice TODAY at the PLF Web site, www.osbplf.org.

ABA Law Practice Division

Since 1974, the ABA Law Practice Division (formerly Law Practice Section) has supplied lawyers and legal professionals with cutting-edge information and resources related to the core areas of marketing, management, technology, and finance. Whether you are seeking to become a successful lawyer, build on your successes, or grow your law practice, LP is here to help. Become a member to take advantage of our meetings and professional networking opportunities, CLE programs, book discounts, magazine, and much more: http://www.americanbar.org/groups/law_practice.html.

IMPORTANT NOTICES

[Rev 6/2015] PROFESSIONAL LIABILITY FUND (ABA TECHNOLOGY RESOURCES) 46

FORMAL OPINION NO 2011-188 [REVISED 2015] Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials

Question: May Lawyer do so?

Conclusion: Yes, qualified.

2016 Revision 47 Formal Opinion No 2011-188

With respect to a nonlawyer employed or retained, supervised or directed by a lawyer:

2016 Revision 48 Formal Opinion No 2011-188

2016 Revision

49 Formal Opinion No 2011-188 standards relating to confidentiality and security, provided that those industry standards meet the minimum requirements imposed on the Lawyer by the Oregon Rules of Professional Conduct. This may include, among other things, ensuring the service agreement requires the vendor to preserve the confidentiality and security of the materials. It may also require that vendor notify Lawyer of any nonauthorized third-party access to the materials. Lawyer should also investigate how the vendor backs up and stores its data and metadata to ensure compliance with the Lawyer’s duties.4 Although the third-party vendor may have reasonable protective measures in place to safeguard the client materials, the reasonableness of the steps taken will be measured against the technology “available at the time to secure data against unintentional disclosure.”5 As technology advances, the third-party vendor’s protective measures may become less secure or obsolete over time.6 Accordingly, Lawyer may be required to

2016 Revision 50 Formal Opinion No 2011-188

reevaluate the protective measures used by the third-party vendor to safeguard the client materials.7

Approved by Board of Governors, April 2015.

7 A lawyer’s obligation in the event of a breach of security of confidential materials is outside the scope of this opinion.

2016 Revision 51 FORMAL OPINION NO 2016-191 Client Property: Electronic-Only or “Paperless” Client Documents and Files

Facts: Lawyer prefers to maintain client file documents in electronic form only, to the greatest extent possible. For open matters, Lawyer plans to convert documents to electronic form and contemporaneously destroy the paper copies as they are received. Lawyer’s closed matters contain a mix of paper and electronic documents. Lawyer plans to similarly convert the paper documents in her closed files to electronic form and destroy the paper copies of the documents.

Question: May Lawyer maintain electronic-only files and convert existing paper files to electronic form?

Conclusion: Yes, qualified.

Discussion: With limited exceptions for documents that are intrinsically signifi- cant or are valuable original paper documents, such as securities, nego- tiable instruments, deeds, and wills, there is no ethical prohibition against maintaining the “client file” solely in electronic or paperless form.1 Lawyers must take appropriate steps to safeguard client property (Oregon RPC 1.15(a)), maintain confidentiality of client information (Oregon RPC 1.6(c), Oregon RPC 1.9(c)(2)), and communicate with the client regarding the terms of the representation and relevant develop-

1 For a discussion of what constitutes the “client file,” see OSB Formal Ethics Op No 2005-125 (Client Property: Photocopy Charges for Client Files, Production or Withholding of Client Files).

(9/2016)

52 Formal Opinion No 2016-191 ments affecting the representation (Oregon RPC 1.4). Accordingly, lawyers who maintain electronic-only client files should take reasonable steps to ensure the security2 and availability3 of electronic file documents during appropriate time periods, including following the completion of the matter or termination of the representation. Lawyers and clients may enter into reasonable agreements regarding how the lawyer will maintain the client’s file during and after the conclusion of a matter. A lawyer who chooses to convert paper file documents in closed files to electronic-only documents should confirm that doing so will not violate the terms of the retention agreement with the client. The lawyer should also consider the former client’s circumstances—that is, whether an electronic-only file might present a hardship for the former client if the former client needs to access and work with the documents in paper form. See Oregon RPC 1.16(d).4 Even

2 See, for example, OSB Formal Ethics Op No 2011-188 (rev 2015) (Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials), explaining that a “Lawyer may store client materials on a third- party server as long as Lawyer complies with the duties of competence and confidentiality to reasonably keep the client’s information secure within a given situation.” 3 Whether and how long to maintain a client file is a matter of substantive law and beyond the scope of this opinion. The Professional Liability Fund (PLF) generally recommends that files be kept for a minimum of 10 years to ensure the file will be available to defend the lawyer against malpractice claims. See, for example, “File Retention and Destruction,” part of the PLF practice aid and form collection in the “File Management” category on the PLF’s website, . 4 Examples may include indigent or incarcerated former clients, or other clients who may have difficulty using electronic-only documents. Oregon RPC 1.16(d) provides: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers, personal property and money of the client to the extent permitted by other law.

(9/2016)

53 Formal Opinion No 2016-191 after a lawyer has taken reasonable steps to electronically preserve original documents created by a client, the lawyer should not destroy original client documents without the client’s express consent.

Approved by Board of Governors, September 2016.

______

COMMENT: For additional information on this general topic and other related subjects, see The Ethical Oregon Lawyer § 6.2-3 (duty of confidentiality), § 6.2-4 (duration of duty of confidentiality), § 7.4 (client communication) § 12.4-1 to § 12.4- 2 (client property), § 16.4-5 (issues in the electronic age), § 16.4-5(b) (disclosure of metadata), § 16.4-5(c) (third-party electronic storage) (OSB Legal Pubs 2015); and Restatement (Third) of the Law Governing Lawyers §§ 44–46, 59–60 (2000) (supplemented periodically).

(9/2016)