Yls inbrief june2013

YLS Young Lawyers Section

In Brief A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association

In this issue

Hats Off 2 Taking Notice: Examining the Notice Requirements of the Arkansas Statutory Foreclosure Act 6 J.P. Sellers What Judges Want 8 Jessica Virden Mallett Redefining Farm Income 10 Jenny Wilkes Watertown - Fourth Amendment Exceptions 12 Josh Mostyn Tech Tip: Electronic Discovery - Why it Matters in Almost Every Case Meredith Causey Using Cloud Computing to Better Serve Your Clients RJ Martino Anthony Johnson

14

16

Vol. 17 #2

Graphic Design & Layout Anna Hubbard Assistant Editors Andrew M. Taylor Tasty Tips Editor Rashauna Norment Tech Tips Editor Anthony C. Johnson

Young Lawyers Section Chair: J. Cliff McKinney II Chair-Elect: Jessica S. Yarbrough Sec-Treas: Grant M. Cox Immediate Past Chair: Vicki S. Vasser Executive Council: District A: Matthew L. Fryar Ryan Blake Pettigrew William M. Prettyman III District B: Cory D. Childs Gregory J. Northern Stephanie A. Linam District C: Chase A. Carmichael Leslie J. Ligon Ryan M. Wilson

Law Student Representatives: University of Arkansas at Fayetteville School of Law: Chris E. Brown UALR William H. Bowen School of Law: Dominque King

Hats Off

In brief

Editor-In-Chief Tasha C. Taylor

Jessica Virden Mallett, an Attorney with The Law Offices of Peter Miller, P.A., was recently married to Calvin Mallett III (“Trey”), an Advertising Sales Rep for Nexstar Media (KATV and Fox).

Brian Blackman recently took a new position as Commercial Division Manager and Attorney with WACO Title Company in Fayetteville.

Carla Miller was appointed to serve as the Alexander City Attorney by resolution of the Alexander City Council on April 15, 2013.

Kenya Gordon recently joined the chambers of Judge Wendell Griffen in the Pulaski County Circuit Court, 5th Division as a Law Clerk.

Katherine Prescott and her husband, Keith, welcomed their second child (Wyatt Robert Nix Prescott) on March 18th.

Damia S. Rolfe opened her own practice in Little Rock last fall. Her office is located at 400 W. Capitol, Ste. 1730 in Little Rock, AR 72201. Ms. Rolfe’s website address is www.drolfelawfirm.com.

Marjorie E. Rogers (formerly with the James Law Firm) and Debbie Denton (formerly with Watts, Donovan, Tilley) joined the firm Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd. Garrett Ham recently opened his own law office where his practice will focus on Aviation Law, Business Law, Contracts, Estate Planning, Wills & Trusts, and Real Estate Law. Mr. Ham’s office is located at 3511 Southeast J Street, Suite 9 #163, Bentonville, AR 72712. His website address is www.lawofficeofgarrettham.com.

Matthew L. Fryar of Cypert, Crouch, Clark & Harwell, PLLC, in Springdale was named to the Northwest Arkansas Business Journal’s Fast 15, which is designed to recognize 20-something professionals on the fast track to success.

Aaron Brooks was married to Mallory Hardin on January 26, 2013, in Coronado, California. Aaron recently joined the Little Rock office of Wright, Lindsey & Jennings LLP as an Associate Attorney.

Zane Chrisman Brill was recently married to Jack Brill II and gave birth to Matthew William. Matthew is joining big brothers and sisters River, Emma, Alexandra and Jack III. Zane relocated to Missouri at the end of May. Mike Lauro, solo attorney at Lauro Law, PLLC, is a long-time competitor in the sport of table tennis. He recently earned his Level 1 coaching certification from the International Table Tennis Federation (ITTF) and state-level certification from USA Table Tennis (USATT). Mike plays, coaches and competes at Little Rock Table Tennis Club (LRTTC) and also travels to regional tournaments sanctioned

by USATT. He also plans to further his coaching skills and knowledge by attending the ITTF Level 2 course in Austin, TX later this year. Visit LRTTC.org for more information on the sport of table tennis here in central Arkansas. Find out how you can join the club and take Mike’s coaching skills for a spin!

If you have information on YLS Members who deserve a “Hats Off” or would like to submit ideas for articles, please contact the editor of “In Brief,” Tasha Taylor at Tasha@TaylorLawFirm.com.

2

YLS In brief

www.arkbar.com

YLS news Editor Needed for next issue of YLS In Brief T a s h a Taylor is retiring from her tenure as editor of the YLS In Brief with this issue. Tasha was recently honored with the Judith Tasha Taylor Ryan Gray Outstanding Young Lawyer award for her long-time service on the YLS newsletter.

The Arkansas Bar Association is grateful to Tasha for her commitment to the newsletter and creative talent. Under her leadership, the newsletter evolved from a two-page one-color printed brochure to a multi-page, full-color online newsletter. Tasha also encouraged YLS members became to be more invloved with the content of the newsletter with the addition of regular and special features.

The Association is seeking a YLS member to serve as the new Editor-in-Chief. Please contact Lorrie Trogden at ltrogden@arkbar. com if you are interested in this position.

Other opportunities to write for YLS In Brief include: • Tech Tips (discuss technology that you use in your practice, etc.)

• Legal Articles (use this as an opportunity to tell us about your favorite practice area, discuss rule changes, analyze recent cases, etc.)

• Arkansas Traveler (play the part of a critic as you share your unique dining experiences, shops, hotels, entertainment venues, etc.)

• What Judges Want (volunteer to interview a judge and share the judge’s answers to your questions with other young lawyers) • Tasty Tips (if you have a fun recipe you would like to share, submit it and it might be selected to be included in the newsletter)

YLS Volunteers Served Seniors in Northwest Arkansas

On May 29, 2103, YLS members participated in a “Serving our Seniors” pro bono event at the Fayetteville Senior Center. This event was one of the multiple service projects conducted during the 2012-2013 bar year. Other events included fighting food insecurity in Northwest Arkansas at the Cobblestone’s The Farm; creating rice bags for the Arkansas Rice Depot, delivering non-perishable food to the Ronald McDonald House in Memphis; gathering groceries at the Salvation Army in El Dordado; and collecting toiletries for the Safe Haven Shelter for Women & Children in Hot Springs.

Save the date for 2014 Annual Meeting June 11-14, 2014 Hot Springs Convention Center

J. Cliff McKinney II new YLS Chair C l i f f McKinney II has been named chair of the Young Lawyers Section for the 20132014 bar year. Cliff is J. Cliff McKinney II a transactional attorney at Quattlebaum, Grooms, Tull & Burrow in Little Rock. He has dedicated the majority of his career to the practice of real estate law.

Click here to view Cliff’s firm bio.

Cliff has been a volunteer for the Association and YLS in various capacities.

He has served as chair of the Real Estate Law Section and his served his community as chair of the Arkansas Rice Depot.

The Association has awarded him with two Awards of Excellence, the Judith Ryan Gray Young Lawyer Service Award and a Golden Gavel award for his work as chair of the 2011 Annual Meeting. Cliff received a writing award from the Arkansas Bar Foundation at this year’s Annual Meeting for his article on “Goings v. Mills, the First Case (Literally): A Retrospective on the First Case Decided by the Arkansas Supreme Court After Statehood” that was published in the Spring 2012 issue of The Arkansas Lawyer magazine.

2012-2013 YLS Chair Vicki S. Vasser passed the gavel to Cliff during the YLS Annual Meeting on June 14, 2013 that was held in conjunction with the Arkansas Bar Association’s Annual Meeting at the Hot Springs Convention Center. Jessica Yourbrough was elected chair-elect and will become chair at the 2014 Annual Meeting that will be held June 11-14, 2014 at the Hot Springs Convention Center.

3

Meet the 2013-2014 YLS Executive Council

as of July 2, 2013

J. Cliff McKinney II Chair

Jessica Yarbrough Chair-Elect

Grant M. Cox SecretaryTreasurer

Vicki S. Vasser Immediate Past Chair

Matthew L. Fryer District A Representative

William M. Prettyman III District A Representative

Ryan B. Pettigrew District A Representative

Cory D. Childs District B Representative

Gregory J. Northen District B Representative

Stephanie A. Linam District B Representative

Leslie J. Ligon District C Representative

Ryan M. Wilson District C Representative

Chase A. Carmichael District C Representative

Amber DavisTanner At Large Representative

Chris E. Brown U of A Law Student Representative

Dominique King UALR Law Student Representative

4

YLS In brief

www.arkbar.com

5

Taking Notice: Examining the Notice Requirements of the Arkansas Statutory Foreclosure Act

By J. P. Sellers

J. P. Sellers is an associate in the Little Rock office of Mackie Wolf Zientz & Mann, P.C. He was admitted to the bar in Arkansas in 2009 and Tennessee in 2012. His practice focuses on creditor’s rights in foreclosure, eviction and asset recovery actions. Mr. Sellers may be contacted via email at jpsellers@mwzmlaw.com.

The Arkansas Statutory Foreclosure Act has been highly scrutinized since its enactment in 1987. While the Act was initially lauded by consumer protection groups as an attractive alternative to what was deemed an awkward judicial foreclosure process, critics now declare it is unfair to consumers. Opponents assert that the statutory foreclosure process is unfair to the consumer because it is a quick process without judicial oversight.

The Act, as amended in 2011, provides some of the strongest safeguards in the nation for a 6

YLS In brief

www.arkbar.com

consumer facing a statutory foreclosure. Even after the enactment of the consumer-friendly amendments in 2011, the Act is still vastly unpopular. Currently, the most criticized aspect of the Act is the notice requirement. Unlike its judicial counterpart, personal service is not required in a statutory foreclosure. A close examination of the notice required in a statutory foreclosure will reveal that there is actually more notice required by the statutory foreclosure process than its judicial counterpart. Additionally, the notice provided offers more protection to the consumer.

The first notice provided to a consumer facing foreclosure is the demand letter. When an individual fails to make the payments required by the terms of their mortgage or deed of trust the lender will send the individual a letter demanding payment of the past due amount within a specified time period, usually 30 days. The demand letter is sent prior to the initiation of either a judicial or statutory foreclosure. If the loan is not reinstated within the time allotted, the lender will refer the loan to an attorney for foreclosure. If the property is referred for a judicial foreclosure the attorney may immediately file their complaint for foreclosure with the Court. If the lender decides to proceed with a statutory foreclosure the attorney must send additional notice to the consumer prior to initiating foreclosure.

Act 885 was enacted in 2011. This amendment to the Arkansas Statutory Foreclosure Act added additional notice requirements and two important safeguards to the statutory foreclosure process. Safeguards similar to those enacted by Act 885 were included in the recent national mortgage settlement and

are required of lenders that participated in the settlement. The fact that these safeguards have already been in practice for two years in the State of Arkansas and are required of all lenders speaks to the strength of the protection offered by the Arkansas Statutory Foreclosure Act. The first safeguard added by Act 885 is what is commonly referred to as the pre-referral letter. The pre-referral letter must be sent by the lender or loan servicer 10 days prior to referring the delinquent loan to an attorney to initiate foreclosure. The letter provides the consumer with the name of the note holder and the location of the original note, a copy of the note with all endorsements, a copy of the security instrument with all assignments, a copy of the payment history evidencing the date of default, and a detailed list of all loss mitigation programs in which the lender participates with contact information for each program. While the information provided in the pre-referral letter is similar to what would be provided to the Court in a judicial foreclosure, it differs in one key aspect. The loss mitigation information provided to the consumer equips them with the means to contact the lender and attempt to avoid the foreclosure sale. Often the lender will provide the consumer with a single point of contact within the loss mitigation department. The single point of contact works with the consumer throughout the loss mitigation review process. By informing the consumer of all of their options to avoid foreclosure, prior to referral to an attorney, it allows the consumer a chance to avoid the foreclosure process altogether. This requirement is not mirrored in the judicial process.

The pre-sale letter is the second safeguard enacted under Act 885 and compliments the pre-referral letter. The Act requires the lender or servicer certify to the attorney that if the consumer was reviewed for a loan modification or forbearance plan that the individual was provided written notice that they did not qualify for the assistance. The denial letter must be sent at least 10 business days prior to the foreclosure sale. If an individual did not apply for assistance the lender provides a written statement to the attorney advising the same. This safeguard eliminates the “dualtrack” foreclosure, which previously allowed a lender to proceed with the foreclosure sale despite the consumer being reviewed for a plan that might save their home. If the consumer is still under review and has not been denied assistance at the time of the scheduled sale, the foreclosure sale may not proceed.

Once the statutory foreclosure commences, the Act requires that notice of the foreclosure be sent to each mortgagor and grantor of the mortgage or deed of trust and each obligor on the note. Notice must be sent by certified and first class mail to the last known mailing address of the consumer. The notice must include the notice of default which sets

forth the date, time and location of the sale.

The notice of default is filed in the real estate records of the county where the property is located sixty days prior to the foreclosure sale. In addition, the notice of default must be published four times in a newspaper of general circulation in the county where the property is located The notice of default is also posted at the county Courthouse and on the internet prior to the sale.

Critics assert that because personal service is not required that there is no guarantee the consumer will receive the notice. Often overlooked is the restricted component of the certified delivery process, which requires the individual personally sign for the letter prior to delivery. While it can be argued that an individual other than the consumer may sign for the letter, the same is true for personal service if an individual over the age of fourteen is available to accept the service for the individual. Similar to personal service an individual may refuse to accept the certified letter, which will then be returned to the sender.

The Act requires the notice of default be sent via first class mail to ensure the consumer still receives notice of the foreclosure sale. Another method used by the Act to ensure notice

of the sale is received is the heightened publication requirement. Newspaper publication is required four times prior to the foreclosure sale, as opposed to the two times required for a warning order in a judicial foreclosure.

Also, internet publication is required in the statutory process, which is not mirrored in the judicial process.

Statutory foreclosures are utilized in many states as an efficient process to allow lenders and loan servicers to retrieve property that secures a defaulted loan. The efficiency of the process allows for quick recovery of abandoned properties which destroy neighboring property values. By having an efficient process in place it allows lenders to lower interest rates and frees capital to originate more loans to potential homeowners. Collectively, the notice required by the Arkansas Statutory Foreclosure Act provides many more opportunities for the consumer to be notified of the pending sale than the judicial foreclosure process. Consumers are also equipped with the information they need to save their home.

While the foreclosure process will probably never be looked upon with favor, the statutory foreclosure process in the State of Arkansas can definitely be regarded as fair. ●

Supporting Legal Professionals

ADVANCING CAREERS Visit the ABA Career Center, where we’re connecting legal professionals with top employers in Arkansas. Find local legal jobs and recruit qualified candidates dedicated to the profession!

20 NEW JOBS POSTED!

Visit the ABA Career Center today! www.arkbar.com/pages/Benefits.aspx

7

What Judges Want

By Jessica Virden Mallett

Jessica Virden Mallett graduated from the UALR Bowen School of Law in December 2010 with High Honors.

Shortly after graduation, she started working at The Law Offices of Peter Miller, P.A., were she specializes in personal injury law. She is licensed to practice in state and federal court, and is a member of the American Association for Justice, Arkansas Trial Lawyers Association, the Arkansas Bar Association, and the Pulaski County Bar Association.

All judges are different. That’s one thing I have learned in my two short years as an attorney. Unless you have been in front of a particular judge or talked to someone who has, you may be walking into a courtroom blind. Because I will never know from experience, I sat down with my father, Bart Virden, the newly elected district judge of Conway County, to find out what he wants and expects in his courtroom.

Me: So, as a judge, what do you want?

Judge Virden: (Laughing) my own bathroom. No, don’t write that down!

Me: That was a broad question to start 8

YLS In brief

www.arkbar.com

with. You’re the district judge of Conway County. What makes up that district court system?

Judge Virden: There are five divisional courts in the district, Morrilton, Plumerville, Oppelo, Menifee, and Conway County divisions. Conway County district judge is a part time position, and I hold court in the five different divisions all in the same week, one week a month. My first week as judge, I had 1,600 cases on the collective dockets.

Me: What type of cases do you hear?

Judge Virden: Misdemeanor criminal offenses, small claims, and some civil cases.

The misdemeanor criminal offenses category may be a bit misleading because traffic offenses are lumped in there as well.

Me: What is your typical caseload?

Judge Virden: I believe it is somewhere between 11,000 and 12,000 cases a year.

Me: Of that, how many are criminal and how many are civil?

Judge Virden: Like I said, traffic gets lumped in with the criminal category. Probably about 98% of my caseload is traffic and criminal offenses.

Me: How many of the people who appear before you are represented by counsel?

Judge Virden: Probably less than 5%.

Me: What is an average day like in your courtroom?

Judge Virden: Typically, court will start at 8:00 a.m. Usually there’s about a 32-page plea and arraignment docket with about 360 cases on it. Then there is the trial docket in the afternoon, which typically may have over 150 cases on it. On an average day, less than 25 of those will actually be tried.

Me: With so many cases, why are there so few represented by counsel?

Judge Virden: Mostly because of the cost of hiring an attorney compared to the fine they are facing if convicted. Now, commercial vehicle operators will often have an at-

torney because keeping a moving violation off their record is more important than for most other people.

Janna Virden (Mom): Without an attorney, can they get a fair day in court?

Judge Virden: Well, pro se litigants are supposed to be held to the same standard as attorneys, but they really don’t know the rules of civil procedure or evidence. I generally give pro se litigants a little more leeway. A lot of times they just want to tell their story, so I let them. However, I will say, people who hire attorneys usually get a better result than those that don’t, even with speeding tickets.

Me: For new attorneys coming into your courtroom, what do you expect from them?

Judge Virden: I expect them to know what they’re doing. (Laughs). But really, they need to be prepared. If they think they want to do trial work, go to work for a firm that lets them go to court. If they want to learn trial by fire, they should go to work for the prosecuting attorney’s office or the public defender’s office. When I first came out of law school, I clerked for Justice David Newbern on the Arkansas Supreme Court.

Then I went to work for a lawyer who was the prosecuting attorney in Conway County at the time. Back then; district court was called municipal court. He tossed me in the middle of a case, and I was scared to death.

The next time when municipal Court was coming around, I spend hours to get ready for each case. After it was over, I submitted a bill to him for going to court. The first thing on the bill was for court preparation.

I had pulled the docket, looked up all the charges, and figured out everything I needed to prove in each case. He looked at the bill and told me that we didn’t do that for municipal court. But you really should. When you come into court, you should know all the elements of a case you have to prove.

I’m also pretty casual, but I try not to use

first names. For newer attorneys, try not to use first names in the courtroom, even if you are familiar with the person you are talking to. Using last names with “Mr.” or “Ms.” shows a respect for the judicial system. That is important for the other people in the courtroom. In open court, especially district court, try not to be too casual or familiar because there are always people watching and scrutinizing everything we do.

Me: I’ve had this problem, so I bet other young attorneys have, too, when they come into your courtroom, where should they go?

Judge Virden: If it’s their first time in a particular court, it never hurts to ask the bailiff or a court clerk where all the lawyers hang out before court starts. Out of town lawyers often will sit out in the courtroom, but it’s no problem to walk up to the local attorneys and introduce yourself. It’s actually important so that people know you are there. I try to get the out of town lawyers in and out first because I know they have to drive back somewhere. Then I get to the local lawyers.

Me: Why do people with lawyers go before the pro se litigants?

Judge Virden: That’s generally the case unless the lawyer is there for a trial. Then he has to wait until the plea and arraignments or negotiated pleas are over. The attorneys go first because when they do their job, they generally have a negotiated plea, and I do those first. For any traffic or criminal case, I recommend trying to work it out before court. I realize that sometimes it’s not possible, but be persistent with the prosecutor or city attorney. They’re dealing with huge volumes of cases so sometimes it takes a couple of phone calls to get them on the phone.

When a plea is negotiated beforehand, chances are the case gets resolved quicker and you get to leave quicker. Also, district court is a high volume business. If you have a case to try, stipulate on as much as you legitimately can. This is really important. It helps the judge, you and the flow of court.

Me: What about attire?

Judge Virden: This again goes back to public perception and respect for the judicial system. I think men must wear a jacket and tie and women should wear the equivalent of a coat and tie.

And take some time to talk to you clients about what they wear to court. If you have a client charged with possession, don’t let him walk into court wearing a t-shirt with a marijuana leaf on it. If you client is charged with domestic battery, don’t let him wear a wife-beater to court. Spend some time preparing your clients.

Me: Sounds like you’ve already accumulated some good stories. Do you have any you’d like to share?

Judge Virden: Well, I have started keeping little notes about things that happen in the courtroom. I’ve got a lot of them. One that comes to mind is last month a police officer testified that he gave a DWI defendant a HGN (horizontal gaze nystagmus) test. He said that the defendant exhibited all six indicators of intoxication, two in each eye.

I also had a pro se guy who was emphatic that he be allowed to plea “no content,” so I let him.

Me: Would you mind if young attorneys came and watched your court?

Judge Virden: Not at all. In fact, I would recommend watching court a day or two before you’re scheduled to appear.

Another little thing, always remember to ask permission to approach a witness. If I know there are going to be several documents, I usually grant continued permission to approach.

Also, recognize the difference between a judge and a jury. In district court, you are not trying to persuade twelve laymen. Judges are not impressed by courtroom theatrics.

Me: Do you have any final words of wisdom?

Judge Virden: I think this is a pretty old story. There was a barrister years ago back in England who was coming to the end of his career. He was asked why he had entered the law so many years ago. He said, “To think I had a sense of playing a part and justice being done. As a young lawyer, I lost cases I should not have lost because of inexperience. As I grew older, I found myself winning cases I should not have won because of my experience. I like to think that in the end, overall, justice was done.”

I guess what I am saying is that losing should bother you, but it shouldn’t define you. There are cases that you will lose, but you should learn from them and be better next time. We can’t all be Denny Crane. ●

RESOURCES WEEKLY CASE SUMMARIES ArkBar provides weekly case summaries of significant Arkansas Supreme Court and Court of Appeals each Tuesday in the ebulletin. Case summary mini reviews are availalbe on Twitter (@ArkBar) #arcasesawupdates.

8th CIRCUIT CASE LAW UPDATES RSS FEED Available at your member portal on www.arkbar.com

ARKBAR LAW PRACTICE MANAGEMENT WEBSITE http://www.arkbar.com/pages/ law_practice_management.aspx Members-only website that provides a variety of services to help you start and manage your law office.

ARKANSAS JUDICIARY WEBSITE https://courts.arkansas.gov Your source for oral argument videos, docket search, proposed rule changes, opinions and disciplinary decisions, and online services.

9

Redefining Farm Income

by Jenny Wilkes

Jenny Wilkes, JD, LLM Frost, PLLC 425 West Capitol, Suite 3300 Little Rock, AR 72201 jwilkes@frostpllc.com Direct: (501) 975-0142

Consider the following hypothetical: You are a full-time farmer who lives and works on your family farm. The farm produces the basic food items you can find in any grocery store: eggs, poultry, apples, and grains. You are on call 24/7, the only income you receive is from the farm, and you put most of that income back into the farm as an investment.

Your grandfather started the farm and you represent the third generation of your family to work on the farm. In order to add a layer of liability protection, you incorporated the farm as a subchapter C corporation that is closely held by you, your brother, and your father. You take an active management role in that corporation and serve as an officer of the corporation. Because you are an officer, you are required to receive remuneration from the farm in the form of W-2 wages.

In order to help support your farming op10

YLS In brief

www.arkbar.com

erations, you receive program subsidy payments from the Farm Service Agency (FSA).

Are the W-2 wages you receive from your closely held farming business considered farm income? As intuitive as a “yes” answer might sound, for purposes of the FSA’s program eligibility requirements, W-2 wages received from a farming business were not considered to be farm income. Prior to March 27 of this year, the FSA was able to lean on its own administrative handbook for support in defining W-2 wages as nonfarm income. One page of the nearly 500-page handbook contained the following footnote: “Note: Wages earned from farming are not considered farm income.” Based on that sole authority, which the FSA drafted and included in its handbook as an afterthought, the FSA would have determined that the wages you received from your closely held family farming corporation were not farm income.

My firm, Frost PLLC, challenged the FSA’s interpretation of farm and nonfarm income in two identical cases involving two brothers with facts very similar to those in the hypothetical above. The brothers were denied FSA program benefits because their nonfarm income (including W-2 wages) exceeded the $500,000 maximum limitation.

Our main argument attacked the narrowness of the FSA’s interpretation and asserted that the interpretation was not entitled to administrative deference because it placed an unfair restriction on the definition of farm income. Specifically, we claimed that the FSA’s position lacked statutory and regulatory authority, ignored the closely held nature of the farming business at issue, and penalized the brothers by recharacterizing their income from farming activities as nonfarm income. In response, the FSA did

not dispute the fact that the W-2 wages were earned from activities related to farming, nor was there any evidence that the brothers earned any other income outside of farming.

Rather, the FSA argued that the agency and the agency alone had the authority to define farm and nonfarm income.

The Hearing Officer disagreed that the FSA’s interpretation was entitled to deference and held that its handbook unreasonably constrained the definition of “average adjusted gross farm income.” As defined in the governing statute and regulations, average adjusted gross farm income includes income derived from or related to the production of crops, livestock feeding or production, the rental or lease of land used for farming, processing farm commodities, or any other income related to farming. See 7 U.S.C. § 1308-3a; 7 C.F.R. § 1400.501(a).

According to the Hearing Officer, the FSA’s handbook severely limited the definition of farm income without explanation. Although agency interpretations are generally entitled to deference when the interpretation clarifies an ambiguous statute or regulation, they are not entitled to such deference when they expand, contradict, or conflict with a proper regulation. The Hearing Officer found that the FSA’s interpretation of wages as nonfarm income contradicted and severely narrowed the broad scope of the statutory and regulatory definition of farm income. As such, the Hearing Officer held that the FSA incorrectly classified the brothers’ W-2 wages as nonfarm income and determined that the brothers did not exceed the $500,000 limitation.

Following our success at the Hearing Officer level, the FSA appealed the Hearing Officer’s ruling to the Director of the National Appeals Division. The FSA made three arguments on appeal in requesting that the de-

termination be reversed: first, that the Hearing Officer’s decision was factually flawed; second, that the Hearing Officer’s decision was inconsistent with the controlling statute and regulations defining farm and nonfarm income; and third, that the Hearing Officer exceeded his jurisdictional authority by substituting his own policy for that of the FSA in determining what constitutes farm and nonfarm income. According to the FSA, the Hearing Officer only had authority to determine whether the FSA’s decision on eligibility was factually correct and in conformance with the applicable regulations and the FSA’s own interpretation of those regulations.

We responded to the FSA’s first claim that the Hearing Officer’s decision was factually flawed by arguing that it was the Hearing Officer’s obligation as trier of fact to make factual findings, and facts themselves cannot be flawed. Under the basic rule of law, it was the Hearing Officer’s duty to weigh the evidence, resolve conflicts in testimony, and draw reasonable inferences from the evidence in reaching its final findings on the facts of the case. The FSA’s claim ignored this basic standard of law. Additionally, because the FSA had not raised any factual issues at the Hearing Officer level, we asserted that the FSA could not make such an argument for the first time on appeal.

In response to the second and third claims that the Hearing Officer’s decision was inconsistent with the controlling statute and lacked jurisdictional authority, we made the following arguments: (1) the FSA applied the incorrect standard of review; (2) the FSA ignored its own inconsistency and ambigu-

ity in defining farm and nonfarm income; and (3) the FSA incorrectly asserted its own interpretation of a regulation amounted to a rule of law. First, in its notice of appeal, the FSA cited the incorrect standard of review for a Hearing Officer Determination in claiming that the Hearing Officer was bound by the FSA’s own ruling. The correct standard, found in 7 C.F.R. § 11.9(d) (1), states that the Director must determine whether the Hearing Officer’s determination was “supported by substantial evidence,” and we argued that there was ample evidence to support the Hearing Officer’s decision.

Second, the FSA’s own handbook was inconsistent in defining W-2 wages as nonfarm income. One page of the handbook included the footnote that wages earned from farming are not considered farm income, but a second, nearly identical page in the same handbook did not contain the footnote. Third, as the FSA’s interpretation did not bear the hallmarks of a regulation, the interpretation lacked the force of law and did not warrant automatic deference. Accordingly, the FSA’s interpretation of farm income was merely advisory. To uphold the FSA’s interpretation would be to permit, in essence, the FSA to create de facto a new law that ran contrary to the congressional intent of protecting farmers.

After reviewing the governing statute and regulations that define farm and nonfarm income, the Director found that the Hearing Officer’s determination was supported by substantial evidence and held that the FSA incorrectly classified the brothers’ W-2 wages from the farm as nonfarm income.

Following the same reasoning as the Hear-

ing Officer, the Director held that the FSA’s handbook interpretation significantly restricted the intent of the regulations, and that although the Deputy Administrator for Farm Programs was allowed to determine what constitutes farm income, he could not do so in direct conflict with congressional intent. The Director therefore upheld the Hearing Officer’s Determination and concluded that the FSA acted inconsistently with governing regulations when the FSA classified bona fide farm income in the form of W-2 wages as nonfarm income.

This ruling creates an opportunity for farmers who have been denied FSA program benefits based on the $500,000 maximum nonfarm limitation because their W-2 wages from a closely held farming corporation were classified as nonfarm income. Going forward, these farmers may be able to assert a claim for payment if the characterization of their W-2 wages as farm income would bring their total nonfarm income below the $500,000 maximum limit. If you have farmer clients or friends, be sure to advise them of the implications of this ruling and to encourage them to reexamine their income and potential eligibility for FSA program payments.

You may read the Hearing Officer Appeal Determinations and Director Review Determinations by going to the National Appeals Division website at www.nad. usda.gov, clicking on “Search NAD Decisions” in the box on the right, and searching for case numbers 2013E000063 and 2013E000064. ●

ARKANSASFINDALAWYER® The Benefits of Membership Market Your Law Practice for only $75/year Special Discount of only $40/year for members licensed less than two years

www.arkansasfindalawyer.com 11

Watertown – Fourth Amendment Exceptions

by Josh Mostyn

Josh Mostyn, of Mostyn Prettyman, PLLC, in Northwest Arkansas, is a past recipient of the TC & Rosemary Carlson Memorial Award for excellence in the study of Constitutional Law at the University of Arkansas School of Law in Fayetteville. For more information, visit ARKLAWYERS.com or call 1-855-HOG-4LAW.

Writing for the United States Supreme Court in 1971 Justice Stewart quoted himself: “[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption that the exigencies of the situation made that course imperative. ‘(T)he burden is on those seeking the exemption to show the need for it. In times of unrest” … “this basic law and the values that it represents

12

YLS In brief

www.arkbar.com

may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won—by legal and constitutional means in England, and by revolution on this continent—a right of personal security against arbitrary intrusions by official power.

If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting his earlier opinion in Katz V. United States, 389 U.S. 347 (1967)).

However…

On April 19, 2013 the city of Watertown, Massachusetts was “locked down” by law enforcement agencies searching for the Boston Marathon Bombing terror suspect Dzhokhar Tsarnaev. Citizens of Watertown were asked to stay inside their homes and to allow only properly identified law enforcement officers to enter. Since then, a video has emerged showing police raiding houses that day, forcing citizens outside of their homes with arms raised, while government agents entered and searched the residences for Tsarnaev.

To the dismay of many Americans, these police actions seem unusual and even unconstitutional. But are they really?

The Fourth Amendment to the United States Constitution only asserts that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” No Warrants being issued in the Boston Bombing case, the operable word to analyze is “unreasonable.”

The High Court holds that the Fourth

Amendment protects people (not places) from warrantless searches where 1) a person has an expectation of privacy, and 2) that expectation is one which society believes is reasonable. Katz at 361. The citizens of Watertown clearly have an expectation of privacy in their homes, and the rest of the country agrees that expectation is reasonable. But just as Justice Stewart expressed in Coolidge, certain exceptions to the Warrant requirement of the Fourth Amendment do exist. Warrantless searches are justified when–in special circumstances–they are deemed reasonable.

The Fourth Amendment, after all, doesn’t give citizens assurances against “reasonable” searches. Like other protections afforded in the Constitution, the Fourth’s are not absolute.

There are several exceptions to the Warrant requirement. For example, the government can search any vehicle entering the country. And there is no need to obtain a warrant if consent has been granted to search a person’s own property or to search property that has been abandoned. There are also administrative exceptions and dispensations for those on probation and parole. Below are some more common exceptions: Searches Incident to Arrest/Custodial Searches In a post-arrest context, an officer may conduct a thorough search of the person and the immediate area, United States v. Robinson, 414 U.S. 218 (1973), including his car, Arizona v. Gant, 556 U.S. 332 (2009), permitting officers to look for weapons within the reach of the arrestee and to prevent escape or destruction of evidence.

Protective Sweeps Officers reasonably believing that they may be in danger can conduct a protective sweep in the areas immediately adjoining a place of arrest. Maryland v. Buie, 494 U.S.

325 (1990). For instance, if officers believe there to be an accomplice hiding in the next room waiting for an opportunity to attack, they may search that room in any place the accomplice may be.

Inventory Searches/Automobile Searches Police may search an impounded vehicle to catalog its contents…to protect the owner’s property, of course! Florida v. Wells, 495 U.S. 1 (1990). And during a stop predicated upon probable cause where the officer suspects the transportation of contraband, he may search the vehicle without obtaining a warrant. Carroll v. United States, 267 U.S. 132 (1925).

Stop & Frisk This exception has been heavily scrutinized in recent years, but dates to the late 1960s.

Generally, with an articulable suspicion, officers may pat down a suspect without a search warrant in order to protect themselves and bystanders from immediate threats posed by concealed weapons. Terry v. Ohio, 392 U.S. 1 (1968).

Open Fields Justice Oliver Wendell Holmes, Jr., rationalized for the Court in a famous 1924 case that land outside the home wasn’t protected from search, as it does not meet the definition of “persons, houses, papers, or effects,” those articles enumerated as specially protected in the Fourth Amendment. Hester v. United States, 265 U.S. 57 (1924). Later courts would uphold this decision, but refine the holding not to include the curtilage, or land immediately surrounding the home in which a person’s intimate activities are associated. Oliver v. United States, 466 U.S. 170, 180 (1984).

Plain View The Plain View Doctrine is one of the prevailing exceptions to the Fourth Amendment. If an agent is lawfully present and inadvertently views contraband, a warrant is not needed to seize the contraband. Coolidge at 2026. This exception has far reaching implications. An officer simply returning a found pet or attempting in good faith to execute a lawful arrest warrant in a third-party’s home, could inadvertently view contraband, confiscate it and arrest the homeowner. Evidence gathered in this way is not subject to exclusion in a criminal trial. More concern-

ing to Watertown residents is that police may base their probable cause affidavits for new warrants upon things they saw in plain view during the raids.

But under what exception may have the government legally and constitutionally raided the Watertown homes?

Exigent Circumstances When “the need for effective law enforcement” (such as chasing a suspect through a home in “hot pursuit”) outweighs the interests being protected (such as privacy), an exigent circumstance exists, dispensing with the governmental need to obtain a search warrant. Johnson v. United States, 333 U.S. 10, 14-15 (1948). The interest in the sanctity of the home typically outweighs the governmental interests, Payton v. New York, 445 U.S. 573, 603 (1980); however, when the exigencies of a situation make it imperative for law enforcement to act quickly, courts have waived warrant requirements. McDonald v.

United States, 335 U.S. 451 (1948).

Courts allow warrantless entry into homes quite often. When police have good reason to believe that evidence will be destroyed (such as intentionally by fire), no warrant is required to enter and protect it. Coolidge.

A “community caretaker” exception exists to allow responders to enter and aid victims or to fight and investigate the cause of fires.

Brigham City v. Stuart, 547 U.S. 398 (1943).

Courts have also waived the warrant requirement when it is believed (due to the heinousness of the underlying crime necessitating the search) that life is at risk and that the threat is imminent. Payton.

But no matter what, the government may not create its own exigencies. Mincey v. Arizona, 437 U.S. 385 (1978). The legality of the actions by authorities in Watertown, Massachusetts hinges upon a determination of what information was available to government agents at the time of the lock down and its reliability. Law enforcement certainly had a reason to believe that many lives were in danger from the future detonation of explosive devices. If law enforcement also had a reason to believe where Tsarnaev was hiding, although the area encompassed a four-block radius, the burden of obtaining individualized search warrants and the potential aftermath from a second or third attack may have

significantly outweighed the obligation to preserve the privacy interests of this limited number of citizens.

Current Fourth Amendment jurisprudence affirms the constitutionality of the searches. But the justification presents a slippery slope nevertheless. How many blocks would it have been reasonable to lock down and search door to door? Ten? Twenty? How about a two-mile radius? Or ten? What if the potential threat had been radioactive or nuclear? What precisely is “UNREASONABLE” anyway? ●

Arkansas Bar Association Young LawyersSection

@arkbar

Arkansas Bar Association

13

tech tip

ELECTRONIC DISCOVERY – WHY IT MATTERS IN ALMOST EVERY CASE

By Meredith Causey

stored electronically (i.e., on a computer), there is a good chance that most documents received or requested during discovery began in an electronic form. So, why does it matter that these documents began in an electronic form? It matters for several reasons.

First, electronic documents contain additional information that paper documents do not; second, key components of electronic documents may be hidden when printed to paper; and third, information that is stored electronically is more voluminous than paper documents. These differences are important to keep in mind when preparing for discovery.

Meredith Causey is an attorney specializing in electronic discovery and the owner and co-founder of eZdiscovery Solutions, LLC. Prior to law school, she worked for a top international law firm providing litigation support on e-discovery projects and handling the technical responsibilities of presenting electronic evidence at trial. Meredith graduated with a B.S. in Political Science from Vanderbilt University and earned her J.D. from the University of Arkansas Little Rock. She is licensed to practice in Arkansas.

As technology advances and the majority of an individual’s work, both personal and professional, is conducted on a computer, electronic discovery is becoming more and more important for attorneys to understand.

Today, attorneys who do any discovery at all have most likely encountered electronic discovery, whether they knew it or not. Electronic discovery, or e-discovery, is simply the discovery of electronic documents and data.

Given the fact that over 90 percent of all information that is created today is created and 14

YLS In brief

www.arkbar.com

Additional Information Contained in Electronic Documents When electronically stored information, such as e-mail, word documents, or excel files, are printed to paper, a portion of that record is lost. Unlike paper documents, where what you see is what you get, electronically stored documents contain information not seen on its surface. Examples of this information include the name of the file, where the file was saved on the computer, who created the file, the date and time the file was created, and when the file was last opened. Most attorneys would consider it important to know if a document was saved in a folder titled “delete in case of lawsuit” or “incidents that might lead to a lawsuit.”

Likewise, a word document named “known_ equipment_defects.doc” is important where this phrase is never seen in the text of the document itself.

Information Missing from Printed Electronic Files Certain electronic documents lose key components when printed to paper, leaving an attorney with an incomplete assessment of that document. Excel spreadsheets often contain formulas adding, subtracting, divid-

ing, or multiplying certain columns that are not visible when the file is printed. The comments contained in a word file are often not shown when the document is in paper form.

A PowerPoint presentation might contain speaker notes hidden on the printed version.

And, a printed e-mail could easily conceal the blind carbon copy (Bcc) field that identifies additional individuals who received that e-mail. These are just a few examples of how information can be missing from the paper version of an electronic document.

Volume of Electronically Stored Information The volume of electronically stored information is almost always significantly greater than that found in paper files. This increased volume can be attributed to several factors.

Electronic files can be copied much easier than paper files; there are often several versions of each electronic document; and with even the cheapest laptop storing millions of pages of information, storage space is not an issue, unlike file cabinets that contain paper documents. E-mails also contribute to the large volume of electronically stored information. Consider the number of e-mails that are exchanged daily, even in a small business or on a personal e-mail account.

E-mails have replaced many phone conversations and mailed letters. With e-discovery, the volume of information is almost always a factor to consider.

Unless you represent the rare client who has managed to avoid using a computer or smart phone, any discovery you conduct is e-discovery. Therefore, it is important to understand a few key differences between electronic documents and paper documents to ensure competent representation of your client. The lawyer who understands e-discovery or enlists the help of an e-discovery expert gains a competitive advantage at the onset of litigation. ●

ArkBar Practice Handbooks Build Your Library with handbooks on substantive areas of state and federal law written by expert attorneys and judges.

HANDBOOK

NON-MEMBER PRICE

MEMBER PRICE

Arkansas Bankruptcy Handbook, 2009 ed.

$225

$125

Arkansas Domestic Relations Handbook, 2007 ed., 2 volume set

$300

$195

Arkansas Probate System Handbook, 2005 ed.

$225

$125

Debtor/Creditor Handbook, 2012 ed.

$250

$150

Elder Law Desk Manual, 2013 ed.

$225

$125

Handling Appeals in Arkansas Practice Handbook, 2013 Supplement to the 2007

$150

$50

Handling Appeals in Arkansas Practice Handbook, 2007 (updated through the 2011 Cummulative Supplement)

$250

$150

Revocable Trusts for Arkansas Practitioners, 2007, ed.

$225

$125

Standards for Examination of Real Estate Titles in Arkansas, 2013 ed.

$75

$45

Workers Compensation Desk Book, 2013

$225

$125

A GUIDE TO ARKANSAS STATUTE OF LIMITATIONS NON-MEMBER PRICE

MEMBER PRICE

$200 Soft bound $200 EPub Version $375 Soft bound & EPub

Free Download or $25 Soft bound $25 EPub Version $40 Soft bound & EPub

Scan the QR code with your smart phone and order you book today!

For ordering information and to purchase print or electronic handbooks go to www.arkbar.com/pages/Practice_Handbooks.aspx

15

Using CloUd CompUting to Better serve YoUr Clients RJ Martino, iProv, LLC and Anthony Johnson, Johnson & Vines Law Firm

RJ MARTINO is president and founder of iProv, LLC. For over a decade, iProv has provided IT solutions focused on combining business and technology in key areas such as Cloud, user support, and IT outsourcing. Additionally, iProv provides Internet marketing services to establish your business online, engage your audiences, and position yourself as an industry expert. iProv manages over 200 workstations/servers and controls hundreds of websites for small and medium sized companies across the United States. He often speaks at industry conferences and corporate events where he examines and discusses technology trends and their effects on the business community. He earned his Computer Science degree and his Juris Doctor from University of Arkansas at Little Rock.

ANTHONY C. JOHNSON is the managing partner at Johnson & Vines, PLLC with its corporate headquarters located in Little Rock, AR. He received his BA at the University of Arkansas in Computer Engineering and his Juris Doctor from the University of Arkansas at Little Rock, Bowen School of Law. His law practice started as a general practice but has since shifted towards mass torts, medical device litigation, & other serious personal injury cases. Johnson’s interests expand beyond the practice of law especially in the fields of business and technology. Prior to law, he had careers in both the SEO/Web development space and the Internet startup industry. He was listed by Arkansas Business as one of the “20 in their 20’s” to look out for in 2012. He was also featured in the April 2012 cover story of the American Bar Association’s Journal as one of “America’s Techiest Lawyers.” He has been published on Lawyerist.com, YLS Newsletter, americanbar.org, and (pending publication this summer) The Arkansas Lawyer.

16

YLS In brief

www.arkbar.com

Using Cloud Computing to Better Serve Your Clients Table of Contents Overview of Paper

3

How Cloud Computing can Benefit You

4

What Does Cloud Mean for a Law Firm?

6

A Practical Example

6

Other Strategic Advantages to Cloud Computing with Regard to Online Legal Services

7

Disadvantages When it Comes to Cloud Computing

8

Cloud Based Products for the Legal Industry

9

Time, Billing and Invoicing

9

Electronic Signatures

10

Case and Client Management

11

Document Management

12

Virtual Law Office Services

13

Project Management

14

Online Document Storage and Backup

15

Remote Access

16

Encrypted Email and Document Exchange

17

Choosing a Cloud Vendor

18

Overview of Paper This presentation will discuss the technology itself, how to decide on which vendor to use, the terms and conditions for using the solutions as they pertain to safeguarding client privileged information and how cloud computing will help you better manage your practice. This webinar will explain what cloud computing is, guidance on what to look for when considering or evaluating cloud solutions, the trends happening in the legal industry, the way cloud solutions are changing the practice of law, and how local and national bars are reacting.

Cloud computing is a general term for anything that involves delivering hosted services over the Internet. This technology is not new. If you have so much as Yahoo or Gmail account, then you have dealt with this technology before. Cloud computing, however, offers more advantages that many people are not aware of.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

How Cloud Computing can Benefit You Here a number of ways that cloud computing can benefit you:

Reduced costs

Scalability

Cloud computing reduces your hardware (computers, software all those downloaded programs), networking management and overall IT expenses. In addition, with cloud computing, you pay for what you use.

You can scale your business’ storage needs seamlessly rather than having to go out and purchase expensive programs or hardware.

A not-for-profit ran a cookbook project and was able to pay for all the cloud apps they needed to create, implement and market their project on a month-to-month basis. They didn’t have to purchase a piece of hardware, buy software licenses or worry about overloading their servers.

There is no need for IT to worry about paying for your future updates in terms of software and hardware.

H

Q

SaaS

Automatic Updates

Remote Access Employees, partners and clients can access, and update information wherever they are, rather than having to run back the office.

Disaster Relief With your company’s data safely stored on secure data centers instead of your server room (previously known as your storage closet), losing power due to hurricanes, earthquakes or a construction worker cutting the power lines, you are back at work as long as you have an internet connection.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

username password

$

$$

$$$

Ease of Implementation

Skilled Vendors

Your IT team (hopefully older than a 10 year old) may not like this, but implementing cloud services is as easy as, well, setting up a LinkedIn page.

Who would you rather manages and protects your data? A company such as InfoStreet (with over 16 years experience serving enterprise clients), IBM, Amazon or your IT staff?

HQ

00s.

HQ

00s.

HQ

HQ

Response Time Cloud computing accomplishes a better response time in most cases than your standard server and hardware.

Even playing field for small firms This allows small companies to complete more effectively with some of the larger businesses, balancing the playing field. Your small business can utilize the same tools that Fortune 100 companies use and can do this because with cloud computing, your business will only pay for what you need (see #1).

Customization Cloud apps allow your business to select what your company needs, when you need it and use it how you want to. You can select an intranet as your platform, email and CRM from InfoStreet, email marketing tools from Topica, financial services from yet another vendor... you use and pay for only what you need.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

What Does Cloud Mean for a Law Firm?

Now, what does this mean for a law firm? It’s simple. Law firms can now store client data, financial records, legal documents, and other information on the Internet, rather than house data in servers located on their premises, often at a cost, which is much less than the cost of storing data internally. This allows clients to have increased access to legal services and enables solos and small law firms to become more competitive.

A Practical Example Let’s look at a practical example: a law firm that wants to offer “unbundled” legal services (just the services a client wants at a fixed fee) online at a reduced fee can only do so by creating an online “client portal” that enables a client to purchase legal services over the Internet. Because of the nature of this web architecture, this “client portal” exists on the Web and data is stored externally and not within the law firm. The client portal provides a secure personalized legal space within which the client can consume legal services.

It is mostly solos and small law firms that provide legal services to solve the legal problems of individuals and small business.

Large law firms may have the resources to create portals for their corporate clients, and to store data on servers located within the firm, but solos and small law firm do not. In order to deliver online legal services, the law firm has to create a secure “client portal” which the client can access with a user name and password.

Within this secure client portal, online legal services are delivered, such as online

document assembly, clients can pay their legal bills, and the clients’ legal documents can be stored online. All of these activities involve the storage of the client’s confidential information online.

Because this online legal technology is capital intensive to develop, very few solos and small law firms have developed any virtual law firm technology on their own. Instead, they have looked to a type of cloud computing known as “SaaS”.

SaaS stands for “Software as a Service.”

– software that is delivered over the Internet through the web browser. This means that the solo and small law firms are able, for a relatively inexpensive monthly fee, to subscribe to a set of complicated software technologies that are provided over the Internet from a vendor who hosts both the software application and the firm’s data on a server that is not within the firm’s physical facility.

It is only in this way that these software applications can be delivered to solos and small law firms economically and at a price they can afford.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Other Strategic Advantages to Cloud Computing with Regard to Online Legal Services This form of cloud computing also provides law firms with many other strategic advantages with regard to online legal services: •• Realistically, this is the only way that complex software applications can be delivered to solos and small law firms economically and at a price they can afford. Complicated software applications, normally beyond the capability of a small law firm to develop or use, can be made available to a class of law firms where it would be cost prohibitive if each law firm has to develop the application by itself. This software, such as web-enabled document automation, enables the law firm to increase its productivity, increase its margins, and keep prices low and reasonable.

•• Law firms can more effectively compete against non-law firm legal service providers such as LegalZoom, which use the same “cloud” technology to compete against lawyers. Non-lawyer legal services like LegalZoom have been eating away at the market share of solos and small law firms for years using the same internet-based technology that lawyers fear might compromise the security and integrity of a law firm’s operations.

•• Our research shows that a younger generation of clients want to do business with lawyers over the Internet. If solos and small law firms don’t respond to this demographic on their terms, they will forever lose this client basis to alternative providers.

•• Software applications that are offered as a “software as a service”, require that no hardware or software be installed and updates can be made in days rather than months. New features can be rolled out to all of the law firms who subscriber very quickly without waiting for annual releases. There is no in-house software installation. The attorney has access to data anywhere securely accessing the Internet.

•• In our evolving economy, where there are incentives to “go green”, it is not possible to implement a “go green” strategy without storing data in the “cloud.” Virtual law firms, wireless platforms, virtual law offices, lawyers visiting clients in their homes or places of business, all require a “cloudbased” data strategy.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Disadvantages When it Comes to Cloud Computing It is important to remember that technology is not perfect. There are potential disadvantages when it comes to cloud computing. These disadvantages include: Possible downtime

Security Issues

Cloud computing makes your small business dependent on the reliability of your Internet connection. When it’s offline, you’re offline. One should remember that even the most reliable cloud computing service providers suffer server outages now and again.

Before adopting this technology, you should know that you will be surrendering all your company’s sensitive information to a thirdparty cloud service provider. This could potentially put your company to great risk.

Hence, you need to make absolutely sure that you choose the most reliable service provider, who will keep your information totally secure.

The latter seems to be the main concern among people, including the American Bar Association. It appears to be a question of whether a lawyer who uses SaaS technology is complying with ethical obligations. However, many court opinions have indicated that use of the technology is permitted, only requiring that certain requirements be met.

changing legal landscape. The market for consumer legal solutions is changing in fundamental ways, primarily because of the ascendancy of the Internet. SaaS offered in the “Cloud” is a major step towards innovation in the delivery of legal services in terms of increasing law firm productivity enabling law firms to serve a broader group of consumers at prices that are affordable. It is important to remember, however, that there are risks to storing valuable information on the internet, and these risks are still present when it comes to SaaS technology.

In conclusion, SaaS levels the playing field between solos and small law firm with large firms and the LegalZooms of the world, enabling them to remain competitive in a

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Cloud Based Products for the Legal Industry Now that we know how cloud computing works, let’s take a look at some other ways it can help you or your firm specifically. Here is a list of issues that lawyers consider every day in running their law practice.

Also listed are many SaaS products designed specifically to help lawyers better manage these issues:

Time, Billing and Invoicing These products use cloud computing to help streamline the billing function, so the lawyer operating on a billable-hour basis is not spending a significant amount of time logging work for each client. The collections process is tied into the time and billing component of these tools, with most of them also offering a web-based invoicing system.

Bill4Time (www.bill4time.com)

Chrometa (app.chrometa.com)

provides time and expense tracking, billing services at both hourly and flat fee rates, invoicing, trust accounting, and integration with QuickBooks. For one user and three clients, the service is free; most lawyers will want to go for the Lite ($15.99 per month) or Professional ($29.99 per month) editions, which offer many more features.

automatically captures and categorizes your time. There are three pricing tiers. Basic includes two months of data for two devices for $19 per month, Basic Plus includes one year of data for three devices for $29 per month, and Premium includes unlimited data for four devices for $49 per month.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Electronic Signatures Electronic signatures save time for both the lawyer and his or her clients.

These products provide secure, web-based electronic signatures and in some cases will store signed documents online for access by both parties. Features typically include common file format support, biometric and webcam photo authentication and document archiving.

RightSignature (www.rightsignature.com)

DocuSign (www.docusign.com)

provides 256-bit SSL encryption and Amazon Web Services to ensure privacy of data.

Pricing starts at $14 per month for unlimited documents, a premium feature set, one reusable template and one sender. Small group pricing is $49 per month for unlimited documents, a premium feature set, 10 reusable templates, five senders and branded email and logo.

is an electronic signature service that offers mobile device signing options (for iPhone and iPad), custom storage folder structures, collaboration with third parties to add and edit documents, user and group management, workflows and templates, transaction control and firm-branded envelopes. You can try DocuSign for free, and plans are available at $19.99 and $24.99 per month.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Case and Client Management Case and client management has become one of the most popular cloud offerings due to its broad use for all different forms of law practice, from solos to larger law firms. These products provide features such as document storage, calendaring and searchable client file organization, which the law firm can access from anywhere. One appealing feature of these tools is the ability to organize all of the firm’s client and case matters into a single web-based system that can be more easily searched and accessible than traditional paper filing systems.

Advologix PM (www.advologix.com)

Clio (www.goclio.com)

includes group calendaring, docket and activity management, client management and marketing, project and matter management, time and billing, document management, account management, mobile access workflow, customization and integration features. It costs $90 per month per user, and $75 per month for each additional user up to 5 users.

offers a dashboard where you can see your upcoming tasks and schedule at a glance.

Users can monitor billing targets, link tasks to specific matters, bill time directly from tasks, and run billing, productivity and client reports.

It includes a “client connect” feature for sharing documents with clients online as well as online invoicing and bill payment. There is a 30-day free trial and attorney users pay $49 per month after the trial period.

LawRD (www.lawrd.com) provides a practice management system with features including management reports, time tracking, matter management, contact management, a billing sheets generator and more. A 30-day free trial is available. After that, it costs $19 per month per user.

Rocket Matter (www.rocketmatter.com) is a web-based time and practice management product that includes calendaring, expense, time and task tracking, invoicing, batch billing, matter-based ledgering, phone messaging, a time-tracking timer, Skype integration, mobile access, contact management, documents and notes, tagging, reports, conflict checking and more. You’ll pay $59.99 per month for the first user, with a decreasing pricing model for each additional user.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Document Management Online document management services allow you to access files and documents from any computer with an Internet connection, as well as share them with clients, team members and others.

DropBox (www.dropbox.com)

Box.net (www.box.net),

installs a simple folder on all of your computers; then just move your files into that folder, and they are nearly instantly synched to a cloud location. Dropbox offers 2GB of free storage, and then charges $10 per month for 50GB and $20 per month for 100GB of storage. Note: At press time, the authors cannot recommend Dropbox for storage of confidential documents, due to encryption issues. But it is the best online document manager for nonconfidential records.

like Dropbox, provides tools to manage users, security and permissions, for rolling documents out to a larger group of employees.

It offers 5GB for free, and then $10 per month for 25GB and $20 per month for 50GB. Business and plans start at $15 per user per month for 500GB of space.

NetDocuments (www.netdocuments.com) allows you to create your entire folder structure in the cloud. All your files are completely searchable online, and you can easily import email from Outlook into your account. NetDocuments also provides a records management function to automate the retention periods of certain types of documents. There are three levels of pricing: Basic ($20 per user per month), Professional ($30 per user per month), and Professional+ ($38 per user per month). All start with 10GB base storage.

Worldox (www.worldox.com), best known for its standalone software product, now offers Complete Cloud, which provides the same Worldox document management service, but with no software to install or upgrade, or servers to purchase. Call for pricing information.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Virtual Law Office Services These services facilitate the online delivery of legal services and include the use of secure client portals to provide clients with the ability to work with their lawyer online. They combine web-based case and client management products with time, billing and document management and other law office management features, including form libraries, law libraries, calendaring, invoicing, document assembly and automation features, and online client intake procedures, among other features.

DirectLaw (www.directlaw.com)

Total Attorneys (www.totalattorneys.com)

provides a secure online client portal with a self-service interface, encrypted attorneyclient communications that are time and date stamped in threaded archives, plus calendaring and file storage with upload and download functions. It also includes a web-enabled document automation function and libraries of state-specific documents, legal invoicing and online credit card payment for legal fees. Introductory pricing is available for solo start-ups and new lawyers. Visit the website for pricing details on the DirectLaw Basic, DirectLaw PayGo and DirectLaw Complete services.

provides a secure client portal, online collaboration, document storage and sharing, case and client management tools, online invoicing and bill payment capability, calendaring, conflict of interest checks, jurisdiction checks, trust accounting compliance and data backups, among other features. Pricing for lawyers starts at $50 per month with other pricing based on the number of users.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Project Management More and more, lawyers are recognizing that project management skills are important to the practice of law. After all, managing a case or a transaction is similar to managing a business project; there are specific tasks, milestones and resources to be assigned to each task.

The following provide all of those features, as well as discussion forums, chat rooms and even wikis for collaboration. Some also include practice management tools such as time entry, billing and calendaring.

Basecamp (www.basecamphq.com)

Onit (www.onit.com),

is one of the pioneers of online project management. Basecamp has all the basic features—message boards, file storage and collaboration, task lists and time tracking, and a number of project templates that can jumpstart your project initiation. Pricing is $49 per month for 35 projects and 15GB of storage space, $99 per month for 100 projects and 30GB of storage, or $149 per month for unlimited projects and 75GB of storage.

new to the legal project management scene, is designed for lawyers, firms and even corporate legal departments that have to manage multiple projects. The basic version is free. Corporate law departments can subscribe to the new Onit Premium for a monthly fee. Call for pricing information.

PBWorks (www.pbworks.com) offers project workspaces that are clean and easy to use. You can choose to be notified when any change to documents, pages or task status occurs. Call for pricing information.

Zoho Projects (www.zoho.com/projects) offers an interesting project management tool. The free version gives you one project, with 10MB of storage space. Check out the different value packs ($99, $199 and $699 a year, respectively) to see which option best fits your needs.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Online Document Storage and Backup It should be noted that online backup and online document management are not the same thing; online backup is designed for business continuity and disaster recovery purposes, either as a primary backup or as a redundant backup for some other backup source. These services encrypt your data and typically back up incrementally, only backing up those files that are new or changed.

Mozy (www.mozy.com),

Carbonite (www.carbonite.com)

one of the first online backup services, is still a strong choice. The company offers a Home version ($5.99 per month for 50GB, $9.99 per month for 125GB) and a Pro edition (per user pricing ranges from $3.95 +$.50 per GB per month) that provides network and server support for larger firms. The new Mozy 2xProtect will also create a local backup to an external drive, providing true redundant backup.

is another popular choice for online backup.

You can try it for 15 days for free without even giving a credit card. If you decide to purchase it, you pay a flat rate starting at $54.95 per year per computer with unlimited data storage.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Remote Access Many of you no doubt already use a remote access tool to log in to your work computers. If so, then you are already using a cloud computing service. These applications make it simple for lawyers to have constant access to not only important work and client files, but also to software applications that may not be installed on a firm laptop or home computer.

GoToMyPC (www.gotomypc.com)

LogMeIn (www.logmein.com)

transfers documents between computers, prints to the computer you are working on or the one being accessed, allows for full displays of your computers if you have multiple monitors, and prevents others from viewing your computer’s monitor while you are remotely connected. For one user, the price is $99 per year. The Pro version starts at $198 per year for two computers, and goes up from there. Corporate pricing is also available.

essentially offers the same features as GoToMyPC, but also allows you to access your computer via an iPhone or iPad. A single-user version is always free and, while it is not as full-featured as the Pro edition, it provides good basic remote access. A Pro account starts at $69.95 per computer with discounts available as the number of computers increases.

Legal Workspace (www.legal-workspace.com) is designed specifically for the legal profession.

It serves as an Internet-hosted IT environment and offers more than simple desktop sharing.

Lawyers can access all of their software and services online, without having the software installed on local computers. It provides access to Amicus Attorney, Timeslips, QuickBooks, Worldox, Microsoft Office and Trend Micro antivirus tools. With these tools, you can essentially run your entire practice on the Internet. Call for pricing information.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Encrypted Email and Document Exchange These services offer secure messaging and document exchange, for when you need to ensure that communications with your clients or others are encrypted and safe from prying eyes.

Dialawg (www.dialawg.com)

RPost (www.rpost.com)

provides encrypted communications specifically for attorneys. Files and messages are sent over an encrypted SSL channel. All data is encrypted and stored in Dialawg’s private network, and recipients can view the files or messages securely via the web, Outlook, an iPhone or other device. The basic service is free, with messages costing $.20 per recipient. Bronze, Silver and Gold levels range from $3 to $48 per month.

provides a registered email service with encrypted delivery of email and compliance with HIPAA, FSA and other privacy regulations.

Services include registered email, electronic signatures and email encryption with document archiving. Pricing ranges from $79 per month for 100 units per month to $9,750 per month for 25,000 units per month.

ZixCorp (www.zixcorp.com) will send an encrypted email directly into a recipient’s inbox as an HTML attachment within a plain-text email. Users click on the email attachment and enter a password, after which the message is decrypted in an Internet browser. Stored messages are encrypted. Call for pricing information.

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

Choosing a Cloud Vendor Well, now you know what cloud computing is, how it can help you, and who can offer it to you. The only question is: is cloud computing right for you or your law firm? Here are some factors one should consider when evaluating SaaS products, and some specific questions you should ask SaaS vendors before signing up.

Functionality/Usability •• Does the vendor offer a free trial period or demo to test out the interface and functionality of the product?

•• If you currently use equivalent traditional software, what features do you use most frequently and are they available in the SaaS product?

•• How often are new features added? Are any major new features planned?

•• How open is the vendor to user feedback about changes and new features?

Service and Support •• What training options are available for users of this product?

•• How many attorneys are currently using this product?

•• What type of support is included with the purchase price/monthly subscription?

•• Does the vendor offer (or would it be willing to negotiate) a Service Level Agreement (SLA) that guarantees a certain response time to customer service and/or technical support requests?

Availability/Access •• How often do I need to access my legal software outside of the office?

•• Is the SaaS compatible with my preferred platform/device/web browser?

•• Do I work in an area that's prone to disaster or other business continuity threats?

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com

•• Do I have reliable access to the Internet from work? From home? On the road?

•• Does the provider offer (or would it be willing to negotiate) a Service Level Agreement (SLA) that guarantees a certain level of service (e.g. uptime, accessibility, etc.)?

•• Are any relevant guarantees or disclaimers of liability included in the provider's Terms of Service (TOS)?

Ethics/Security Concerns •• How does the vendor safeguard the privacy/confidentiality of stored data?

•• How often is the user's data backed up? Does the vendor backup data in multiple data centers in different geographic locations to safeguard against natural disaster?

•• What is the history of the vendor? Where do they derive their funding? How stable are they financially?

•• Can I get my data "off" their servers for my own offline use/backup? If I decide to cancel my subscription to the software, will I get my data? Is data supplied in a non-proprietary format that is compatible with other software?

•• Does the vendor's Terms of Service or Service Level Agreement address confidentiality and security? If not, would the vendor be willing to sign a confidentiality agreement in keeping with your professional responsibilities?

Cost •• What are the monthly costs for the SaaS option, and are discounted rates available for non-lawyer employees like paralegals, legal assistants, and law clerks?

•• Does the vendor require a contractual agreement to maintain service for a certain amount of time (e.g. 12 months, 24 months)?

•• How does the cost of the SaaS solution compare over a two or three year period to the cost of a comparable traditional software license?

•• What's the pricing history of the SaaS solution? How often are monthly rates increased?

•• Are there any incidental costs for the SaaS solution, like data backup or support?

Email: sales@iProvWEB.com • Phone : [501) 683-7229 • URL: www.iProvIT.com