Cellphones

One way or another, all lawyers use technology. But some lawyers use it more than others. And for certain lawyers, like Lisa Epperly, their practices wouldn’t be feasible without technology.

Lisa is a partner at Babb & Epperly, PLLC, a firm that handles transactional matters, including business and employment law cases, and also serves as outsourced in-house counsel for businesses. Lisa and her partner also appear in court for other lawyers. Her practice is a virtual one, meaning that she and her partner do not have a brick and mortar office and instead hold meetings elsewhere, oftentimes traveling right to their clients’ doors and meeting with them in their offices.

Joe Patrice wrote about virtual practices earlier this week, noting that 21st-century technologies are what made this type of practice possible. That’s certainly the case for Lisa, who relies heavily on mobile tools as part of her law firm’s technology arsenal.

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Now we’ll unmask this superhero.

Longtime readers of Above the Law will recall the tale of Aquagirl. She’s the former Cleary Gottlieb summer associate who, while in a state of inebriation, stripped down to her underwear at a Chelsea Piers charity benefit and jumped into the Hudson River. This might have been an effort to demonstrate her swimming prowess (she was on the swim team in college), but ultimately she had to be rescued in a boat by either the Coast Guard or the NYPD. Her exploits are now the stuff of legend, the bar by which summer associate misadventures are measured.

In these pages, we’ve referred to Aquagirl simply by her nickname, in keeping with our general policy of anonymizing summer associate stories. But that policy admits of exceptions. We will now unmask Aquagirl because she’s back in the headlines for newsworthy conduct — this time heroic rather than scandalous….

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The Supreme Court’s recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the “damage” done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones. Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state’s Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailoredto the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

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Judges are people too. Usually older people apt to complain that everyone should keep it down and get off their lawn. And in the interest of getting people to quiet down, older people love writing rules. As Jerry Seinfeld said of Florida, older folks “work hard their entire lives just so they can move down there, sit in the heat, pretend it’s not hot, and enforce these rules.”

So it really shouldn’t come as a surprise when we get our hands on this over-the-top “Best Practices” guide sent out by a county judge for every lawyer, staff member, and litigant who crosses the courthouse threshold.

And it’s even less of a surprise when it reads like it was written by a grumpy grandparent….

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As some of you may already know, my goal with this column is to encourage lawyers to use technology in their law firms. I do this by featuring innovative solo and small-firm lawyers who are already using new technologies in their day-to-day practices.

In today’s column you will meet Rick Georges, a solo practitioner based in Florida who handles civil cases, both general practice and litigation matters. He also maintains a popular legal technology blog, Future Lawyer, where he discusses about emerging technologies and their use in the practice of law.

In recent months, Rick has written about how he uses a smartwatch in his practice, a concept that intrigues me, since wearable technology is the next stage of mobile computing and will undoubtedly influence the practice of law. I recently caught up with Rick and asked him to share how he uses his smartwatch on a daily basis and how he envisions using it in the future as the technology improves.

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Amal Alamuddin, ready to graduate from law school

* There’s a very good chance that if you go in-house, you could wind up making more money than even the wealthiest of Biglaw partners. But how much more? Take a look at the latest GC compensation survey. [Corporate Counsel]

* GM has hired outside counsel to review the way the company handles its litigation practices. Since we’re not sure which, we’ll take bets on whether this “well-respected outside law firm” is Wachtell or Jenner & Block. [WSJ Law Blog]

* A federal judge in California ruled that the state’s death penalty was unconstitutional. It seems that allowing a defendant to live with the “slight possibility of death” violates the Eighth Amendment. Damn you, appeals! [New York Times]

* “He hasn’t been charged with anything at the moment and we’ll deal with the charges when they’re filed.” Sgt. Bowe Bergdahl is currently being represented by Yale Law lecturer Eugene R. Fidell, a recognized military law expert (and husband of noted legal journalist Linda Greenhouse). [New Haven Register]

* We all know that George Clooney’s fiancée, Amal Alamuddin, has both beauty and brains. What we didn’t know is that she poses for incredibly embarrassing pictures, just like the rest of us. [Us Weekly]

* How do Americans feel about the Supreme Court’s recent cellphone privacy ruling, Riley v. California? [Digital Constitution / Microsoft]

It would be hard to overstate the importance of Riley v. California. Now data on cell phones (and, hopefully soon, other electronic media) requires a search warrant for law enforcement to get access to it during an arrest (generally — check your individual situation; exceptions may apply).

It’s so hard to overstate the importance of Riley that I don’t think a single media outlet has done it yet (which is really saying something in light of the current state of Supreme Court coverage).

As you may dimly remember from the criminal procedure class you took in law school, the “search incident to arrest” doctrine is a little screwy and subject to abuse. The general rule is that police can search things on your person or in the area of your arrest to make sure you don’t destroy evidence or hurt them, but nothing else. Later cases have held that the area you can reach while you’re being arrested (where you could destroy evidence or find something to hurt the police) includes the entire interior area of your car, regardless of how far you can reach or how wedged under the seat cushions that currency counterfeiting machine is.

This body of law is a lovely example of how pro-law enforcement results drive any reasonable understanding of how a test should be applied. Reading these cases in law school is a formatively disheartening experience (“really, that’s the kind of junk judges come up with? Why have laws at all?” etc.).

Riley, though, draws a line around your phone. Sure — the police can look into your pocket to see if that square box is a cell phone or a detonating device, and they can look in the back of your van to see if you could have reached a butterfly knife if you had a 20-foot arm span — but they can’t look inside the phone without first getting a warrant.

Of course, the Court could have decided this in a few ways. It could have written a very narrow doctrinal opinion. Or it could have issued a deeply divided set of opinions where there isn’t a clear statement about the development of the law as much as a resolution of one case. But, instead, the Court issued a 9-0 decision, authored by the Chief Justice, which was a celebration of the importance of electronic privacy and recognizes that we’re in a new world — and need new rules to handle it….

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Warrant or GTFO.

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

– Chief Justice John Roberts, writing for the Court in Riley v. California, holding that the police generally need warrants to search the cellphones of people they arrest.

(Additional highlights from Chief Justice Roberts’s opinion, after the jump.)

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During the final year of law school, those who are about to be handed their degrees are desperately seeking legal jobs of any kind so they can be counted among the few, the proud, the would-be lawyers who are employed at graduation.

Considering how terrible the job market is, those who are lucky enough to find a job are likely do anything they can to keep it. They might even be willing to deal with some “disgusting and grotesque” sexual comments for a while.

But how much is too much? It’s quitting time when the boss starts demanding sexual favors…

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A few months ago, I went to an MCLE seminar on cybersecurity. The 90-minute presentation hit topics such as public wifi, cloud computing, thumb drives, and password strength. The goal of the presentation was of course to scare everyone into being more vigilant in their firm policies regarding cybersecurity. The recommendations included:

  • Never use cloud computing. Always store your data on onsite servers.
  • Don’t use thumb drives on company computers.
  • Never use any mobile devices to store firm information (including emails).

After the presentation, we ate dinner, and everyone and my table came to the same conclusion: “Screw that. We are going to use thumb drives while checking our business email on our phones while client files upload to Dropbox.” That’s because some things are just too convenient to give up. As a solo, I might not want a server that I have to maintain. And I like getting my emails on my phone and on my watch because it makes my life easier.

Now, I don’t want to make light of cybersecurity because it is a very serious issue. But, the fact remains that if your data exists in a tangible form, people can steal it and it is vulnerable….

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