Shannon Brown – Shannon Brown, Esq.
On June 1, 2018, the Pennsylvania Supreme Court sent another wake-up call to municipalities. In Gorsline vs. Fairfield Township, the Pennsylvania Supreme Court held that local municipalities cannot play fast-and-loose with the definitions in a zoning ordinance, especially for uses not expressly provided for, and cannot ipse dixit (because we say so) grant uses not provided for in a zoning ordinance. So-called “catch-all provisions” now may fail under the recent Supreme Court guidance. The message: define, define, define.
[t]he governing body must, however, actually amend its zoning ordinances to permit drilling in designated areas, setting forth whatever limitations and conditions it decides are appropriate for the protection of its citizenry. What a governing body may not do, however, and what the Fairfield Township Board of Supervisors did in this case, is to permit oil and gas development in residential/agricultural districts without first enacting the necessary [zoning] amendments, based upon a clearly inadequate evidentiary record and no meaningful interpretative analysis of the language of its existing zoning laws. Gorsline at 23-24.
Gorsline, while not decided on constitutional grounds, sends yet another strong message to municipalities that a municipality must follow the law intended to protect the rights of all property owners, not just those of an applicant. The opinion also shows that municipalities cannot just go-through-the-motions when applying the law to specific projects or when drafting zoning ordinances.
The purpose of the regulations for this [R-A] district is to foster a quiet, medium-density residential environment while encouraging the continuation of agricultural activities and the preservation of prime farmland. Gorsline at 2.
Inflection Energy, the fracker behind the case, argued that a 300 foot by 350 foot fracking pad with a separate, two million gallon fracking waste retention impoundment was “similar to” other uses in the farming and residential area. Gorsline at 4-5. Inflection also argued that the fracking pad was a “public service facility,” Gorsline at 4-5.
The Fairfield Township Board, without substantial evidence according to the court, granted the fracking application. Multiple appeals ensued. The Court of Common Pleas reversed the Township Board (now disallowing the fracking). The Commonwealth Court then reversed the Court of Common Pleas (then allowing the fracking) by relying on the troubling MarkWest Liberty Midstream & Resources, LLC v. Cecil Twp. Zoning Hrg. Bd., 102 A.3d 549 (Pa. Commw. 2014).
As Gorsline emphasizes, the municipality must use substantial and demonstrable evidence when making decisions; must define terms precisely; cannot rely on catch-all provisions on one-the-fly “zoning;” and must carefully follow the MPC and law—arbitrary or conclusive statements do not meet legal standards.
Three justice dissented in Gorsline. The Dissent argue that Fairfield Township properly granted the application, Gorsline Dissent at 13. The alternate conclusion relies heavily on a rote and permissive interpretation of language and zoning law and deference to the municipality.
Nevertheless, the dissenting opinion also raises, albeit not expressly, an increasing conflict in Pennsylvania law. Pennsylvania law continues to labor under a self-imposed limitation of deciding cases on non-Constitutional grounds, Gorsline at 12, even when fundamental constitutional issues arise.
What rote adherence to 53 P.S. §10603.1 fails to address are the constitutional rights of others affected by the zoning decision—that is, limiting the restriction on the applicant to validate its rights does not address the procedural and substantive rights of those affected by a poorly drafted or interpreted law under, for example, takings or Pennsylvania Constitutional law. Those questions, according to Gorsline, remain painfully open but will need to be decided.
Clarks Summit Borough appointed attorney Shannon Brown to serve as the Borough’s representative to the Scranton-Abingtons Planning Association (SAPA). This summer, SAPA will launch the second phase of a multi-year initiative to help each member community update its zoning ordinances to comply with current state laws and to implement the previously adopted, SAPA Regional Plan.
SAPA involves cooperative community planning between nine, contiguous, municipalities in Lackawanna County including Clarks Summit Borough. Cooperative community planning in Pennsylvania helps municipalities to plan for better futures and to stabilize communities. Through cooperation, municipalities can minimize costly sprawl, limit conflicting land-uses, enhance community services, retain agricultural land and natural spaces, enhance community centers, and stabilize taxes.
Attorney Brown also serves as a Commissioner with the Clarks Summit Borough Planning Commission.
If you become incapacitated and cannot make healthcare decisions, who makes those decisions? Such an event can be extremely stressful without the added stress of trying to determine “what mom or dad would want?” Who makes decisions when you are incapacitated? How do you express your wishes? How do you make decisions about end-of-life prior to a catastrophic event or terminal diagnosis?
the Living Will (or Advance Health Care Directive).
What Is a Pennsylvania Durable Medical Power of Attorney?
The Durable Medical Power of Attorney legally designates another person to act as your Health Care Agent when you become incapacitated (cannot make your own decisions). The Health Care Agent makes decisions about your medical care by “standing in your shoes.” He or she must faithfully carry out all of the powers defined in the Durable Medical Power of Attorney according to your written wishes.
Typically, the Health Care Agent can authorize medical procedures, hire caregivers, take legal action related to medical care, speak with doctors, and authorize admissions to medical facilities.
You can provide legally binding guidance to the Health Care Agent in the Durable Medical Power of Attorney. For example you can provide binding instructions to the Health Care Agent, regarding terminal illness, permanent disability, severe brain damage, resuscitation, etc.
Think of the Durable Medical Power of Attorney as the legal power to carry out your wishes related to medical care any time you become incapacitated—the durable medical power of attorney automatically “kicks-in” upon incapacity.
Some may hear the term, power-of-attorney, and grow concerned (usually because they heard a story that so-and-so had a power of attorney and someone stole all her money). The Durable Medical Power of Attorney is a specialized document addressing only medical issues. To generally pay bills, access checkbooks, or make other non-medical decisions, someone would also need a general power of attorney (a different document).
What Is a Pennsylvania Living Will?
While the Durable Medical Power of Attorney applies generally to any medical situation upon your incapacity, a Living Will (or Advance Health Care Directive) addresses a specific situation: end-stage medical conditions. End-stage medical conditions involve terminal illness, persistent vegetative states, resuscitation, tube feeding, hospice, etc.
The Living Will provides specific instructions for how you want the end-stage situation handled by the Health Care Agent. The Living Will, in concept, eases the burden of making very hard decisions about your loved ones at end-of-life. Rather than struggle with making family decisions at a very emotional and stressful time, the Living Will expresses your wishes ahead of time. Put simply, the Health Care Agent can point to the written document regarding your wishes, which can help de-fuse family disputes and ease remorse (these times are not easy if someone needs to be the decision-maker, without the Living Will, about “pulling the plug”).
What Is a Combined Pennsylvania Durable Medical Power of Attorney and Living Will?
Pennsylvania Law (54 Pa.C.S. § 5471) provides for a combined document. The combined document can be convenient especially in rapidly changing medical conditions.
A Combined Durable Medical Power of Attorney and Living Will is one part of what is called estate planning (no, you do not need the white column house, horse farm, and Rolls Royce for an estate plan). Estate planning, in legal terms, addresses developing a plan your property, healthcare, family structure, etc. An estate plan may include a will, general power of attorney, medical power of attorney/living will, or a special-purpose power of attorney.
Few relish talking about such difficult issues. However, delaying or not planning can place significant burdens on your loved ones at times when stress, sadness, and loss may be heightened.
Because these documents potentially address end-of-life situations, consulting with your pastor may provide guidance regarding your faith tradition’s handling of such issues. Consulting with the designated Health Care Agent, even informally, can help the agent to understand his or her role. (Your attorney can help facilitate this dialogue.) Consulting with family may be helpful so that they know the documents exist (and where they are located) and understand your general wishes. Consulting with your medical provider can help to understand the medical options, understand treatment, and understand how the medical profession makes determinations. Consulting with an attorney becomes important to assure that the documents are properly drafted and properly executed (all the t’s-crossed and i’s dotted). The attorney can also help assure that the Durable Medical Power of Attorney and Living Will are consistent with the rest of your estate planning documents (the latter is important as inconsistencies can cause problems).
What Happens If You Don’t Have a Medical Power of Attorney or Living Will in Pennsylvania?
If you do not have a Durable Medical Power of Attorney, you may limit or forfeit your ability to express your wishes. You have a legal right to make such determinations ahead of time. But by not acting, you may limit or forfeit that right.
Not having a Durable Medial Power of Attorney, can also lead to unintended or unwanted consequences regarding who gets to decide your medical care. For example, the situation can become complex depending on the family situation. You may be in a long-term relationship with a person who is not your spouse. However, generally, if you do not have a Durable Medical Power of Attorney, default legal rules apply to appoint a temporary Health Care Representative (54 Pa.C.S. § 5461) who possesses powers similar to a Health Care Agent. A spouse (unless divorce pending), adult child, parent, adult sibling, adult grandchild, or another adult with a relationship to you may be appointed but in that specific order. For some people, the default appointment order can lead to unintended consequences (for example, an adult step-child with close connection being excluded or a long-time partner being excluded).
Also, by not having these documents ahead of time, a court may also need to appoint a guardian requiring a court proceeding (this process goes beyond this article).
The simple answer is: if you do not have a Durable Medical Power of Attorney, default statutory rules apply, which might not be what you wanted.
If I am Still Young, Do I Need a Medical Power of Attorney or Living Will in Pennsylvania? Aren’t they for old people?
Pennsylvania, generally, allows persons 18 years of age or older to execute a Durable Medical Power of Attorney and Living Will. 54 Pa.C.S. § 5462. Thus, these documents apply to young people just as they apply to older individuals. Sadly, catastrophic events or terminal conditions can occur to anyone—young or old.
Pennsylvania law (54 Pa.C.S. § 5471) provides a sample Durable Medical Power of Attorney and Living Will. I include a formatted sample. See sample Pennsylvania Durable Medical Power of Attorney and Living Will. The sample shows some of the options available and helps initiate discussion. I ask clients to review a sample, make notes, and list questions before meeting about drafting the Durable Medical Power of Attorney and Living Will. The final document should be reviewed by your attorney.
(Why do attorneys always caution to have documents reviewed by an attorney? I get this question from time-to-time.
The attorney review becomes important because the attorney can guide you through drafting the final document, assure that the document was executed (“signed”) correctly, make sure that you follow the formalities required for the document to be truly effective, answer questions about special situations (children with disabilities, blended families, family conflicts, etc.), guide you regarding using the document, evaluate business ramifications, help facilitate delicate discussion with family, and review other documents for consistency.
The Durable Medical Power of Attorney and Living Will serve as important documents in your estate plan. They “spring forth” to help and “speak for you” when you need help most. They can also ease part of the burden for family during the stressful time during a medical emergency.
Drafting these documents by an attorney is usually fairly straight-forward. Your thoughts, prayers, discussions-with-family, and consultation with professionals should go into the process.
The above relies, in part, on a community presentation that I delivered in 2012. This posting was authored in February 2018.
This posting provides general legal information and does not replace legal advice. You should consult an attorney before signing a legal document including when considering a Durable Medical Power of Attorney and Living Will.
The Allegheny Bar Association also provides sample documents for Pennsylvanians. Any documents should also be reviewed by an attorney.
In January 2018, the Clarks Summit Borough Council unanimously re-appointed Attorney Shannon Brown to the Clarks Summit Borough Planning Commission.
In addition to being a consulting attorney, Shannon brings experience as a professor of community and economic development and prior experience serving as a planning commission member in Lancaster County and in New York State. He brings specific legal training in Land Use Law, Environmental Law, and Business Law with academic publication on the intersection of local land use law and federal environmental regulations.
Shannon has family in Clarks Summit and has been visiting the area for 28 years.
On 7 September 2017, Equifax announced a data breach of 143 million Equifax customers involving the compromise of names, Social Security numbers, birth dates, addresses and, in some instances, driver’s license numbers. A subset of victims, apparently, also had credit card numbers and “dispute documents” compromised. Strikingly, the breach occurred over several months, apparently from May to July 2017.
Equifax released very little technical information about the breach itself other than to state that the perpetrators “exploited a U.S. website application vulnerability.” The lack of information during such incidents increases concern.
However, research suggests that the breach may have included the Equifax credit report dispute system and possibly an application affected by the Apache STRUTS vulnerability (or vulnerabilities).
The announcement noted “no evidence of unauthorized activity on Equifax’s core consumer or commercial credit reporting databases,” suggesting that the breach occurred in a related, not the main, Equifax system.
“Only” 143 million victims were affected, thus suggesting a subset of all Equifax customers.
An Equifax job posting seeks Apache STRUTS experience, suggesting the use of a web application platform.
US CERT released two, security-vulnerability notices in 2017 related to Apache STRUTS (VU#112992 in September and VU#834067 in March).
Equifax will likely reveal more over the next few weeks. But initial research raises questions about the extent of the breach and the systems affected.
The Pennsylvania Superior Court recently held in Dittman v. UPMC, that employees cannot sue employers after a data breach involving the employer’s computer systems even if the employee’s sensitive, personal information such as names, birth dates, social security numbers, tax information, addresses, salaries, and bank information is compromised. employees cannot sue even if employee tax refunds are stolen. The Plaintiffs showed that sensitive personal information was stolen from employees of UPMC (at least 27,000 employees) and at least 788 of the employees were victims of tax fraud.
Effectively, the Court concludes that an employer owes no legal duty to protect confidential and sensitive personal information of employees because … well, apparently, these things just happen.
As the trial court correctly noted, “data breaches are widespread” and “there is not a safe harbor for entities storing confidential information.” … No judicially created duty of care is needed to incentivize companies to protect their confidential information…. We find it unnecessary to require employers to incur potentially significant costs to increase security measures when there is no true way to prevent data breaches altogether. Employers strive to run their businesses efficiently and they have an incentive to protect employee information and prevent these types of occurrences.
Sadly, the Court demonstrates a minimal understanding of cybersecurity or data protection. The issue is not whether there is “no true way to prevent data breaches altogether” (emphasis added) as the Court suggests. The issue is whether a business, in this case a large, highly-sophisticated, medical entity in a highly-regulated industry, adequately protected the employees’ data. The opinion provides no analysis of what allegedly “significant costs” are (and compared to what), whether the entity failed to use best practices to secure data (negligence), analyze whether this was a hit-and-run or a sustained breach, assess how long the entity took to determine the breach, determine whether encryption was used, whether data segregation was used, etc.
Instead, the Court simply held that no legal duty exists. The Court left the alleged “creation of” any legal duty to the legislature despite Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000)–the very judicial blueprint for evaluating legal duties of care.
Even more disturbing is the crabbed argument suggesting that some type of incentive exists for employers to protect data. The Court fails to logically explain why an employer has an “incentive” when the employee has little or no recourse to hold the employer legally accountable to their duty of care. Instead, the Court cites to computer-related laws as apparent support.
The Court implies that employees are somehow “protected” from data breach damages by, for example, 73 P.S. § 2301 et seq. But even a cursory reading of that statute, the Pennsylvania Data Breach Reporting Law, shows that an employee has no private cause of action or remedy–see 73 P.S. § 2308 (“The Office of Attorney General shall have exclusive authority to bring an action under the Unfair Trade Practices and Consumer Protection Law for a violation of this act.”). The Court then cites Pennsylvania’s Privacy of Social Security Numbers Law–74 P.S. § 201. 74 P.S. § 201 plainly states: “Fines under this section shall be distributed equally between the Crime Victim’s Compensation Fund administered by the Pennsylvania Commission on Crime and Delinquency and the Office of Attorney General for future identity theft prevention.” The Court then cites the federal, Stored Communications Act–18 U.S.C. §§ 2701-2712. The Stored Communications Act is a criminal statute protecting electronic communications, not data breaches.
The assumption that “gee, data breaches will occur, cest la vie” without any analysis of why data breaches occur, accounting for how to prevent or mitigate the breaches, and the potential failures of a business to take adequate precautions because they effectively have no liability from lawsuits, is staggering–especially in 2017. Unfortunately, Pennsylvanians continue place their most sensitive personal information at risk because they punch-the-clock.
helps the community to coordinate development projects.
As detailed below, some criticize zoning as “the government telling me what I can do with my land” or as “a money-making racket for local government.” First, zoning is not the government telling you what you can do with your land. Zoning protects everyone’s investment in real property. Thus zoning is your community and your neighbors reminding community members to “not be a jerk.” Second, the fees associated with zoning are highly unlikely to be money-makers for a local government considering the time and resources required to evaluated zoning issues. The fees simply defray some of the costs.
Article VI of the Pennsylvania Municipal Planning Code (often referred to as “the MPC” or Act 247 of 1968 as amended) provides details about zoning and the purpose for zoning in Pennsylvania. Section 604 specifically addresses the stated purposes of a zoning ordinance which largely involve proper population densities, compatible land uses, coordinated development, public safety, parking, transportation, infrastructure, adequate housing, and preservation.
While implicit, zoning thus helps on many levels to protect individual investments in property as well as protecting the community (and taxpayers) from unfair cost-shifting by developers for specific projects or wasteful problems (higher taxes) arising from uncoordinated development.
Zoning divides communities into zoning districts based on a community plan (called a comprehensive plan). Each zoning district defines the compatible uses permitted in the zoning district. With each district the regulations must be uniform and uniformly applied. See Pa. MPC § 605.
For individuals, zoning protects your investment in your property by managing uses that may interfere with the quiet enjoyment of your property and by managing development to avoid expensive infrastructure and services for taxpayers.
Assume that you purchased a home in a typical residential neighborhood. You renovated the kitchen. You spent weekends landscaping. You enjoy sitting on the back porch watching the birds. Unfortunately, a neighbor decides to launch a trucking business and starts parking an 18-wheeler with a refrigeration trailer adjacent to your property. The truck runs early in the morning, and the refrigeration generator kicks on every 20 minutes keeping you awake at night. The neighbor refuses to do anything about the problems.
This scenario illustrates the value of zoning. In most cases, zoning bars the interference from the incompatible trucking business located in the residential neighborhood (trucking businesses might be permitted in a highway commercial zoning district away from residences). Therefore, rather than you needing to take the neighbor to court (costing you a lot of money), the neighbor can be asked to cease the disruption or be cited for a zoning violation. Thus, zoning protects your property investment and helps mediate tense situations.
For almost a 100 years now, Euclid v. Ambler Realty, and Nectow v. Cambridge, allow zoning as an exercise of the government power to protect health, safety, convenience or general welfare. These U.S. Supreme Court cases agree that a community has a bona fide interest in maintaining community character and in separating land uses. The cases recognize the practical aspects of living in a community and recognizes that bad actors and bad neighbors should not be able to interfere with the property of decent people. In fact, Euclid specifically states that the basis of zoning is to minimize nuisances and to assure that all persons “sic utere tuo ut alienum non laedas (so use your own property as not to injure another’s property).” Euclid, 272 U.S. at 387-88.
Unfortunately, some still claim that zoning amounts to the government telling you what to do with your property (Euclid was decided in 1926!). That’s simply not true or accurate. Zoning is public, and thus anyone can check the zoning requirements before buying a property. Second, zoning protects everyone’s investment in a property from incompatible uses and unreasonable interference. Third, zoning implements part of the comprehensive community plan—a community-focused document that helps the community plan for the future.
Importantly, Euclid justified zoning because the zoning regulations applied generally and uniformly to the zoning district. Euclid, 272 U.S. at 395-97. That is, the same regulations and standards apply to all property owners within the district—thus, fairness. The MPC echoes this federal Constitutional standard by requiring that zoning be uniform and uniformly applied within each district.
See Pa. MPC § 605.
These two considerations, generality and uniformity, become critical when addressing “exceptions” to the zoning ordinance such as variances. Variances grant a limited exception to the zoning requirements for a specific property. Variances are an extraordinary remedy (rare) because a variance by definition undermines the Constitutional basis of zoning. Thus, one cannot simply acquire variances to avoid compliance with the zoning requirements without triggering unconstitutionality. The uniformity also addresses issues such as impermissible “spot zoning” where an applicant seeks “re-zoning” (or a zoning amendment) for a specific property that is inconsistent with the surrounding uses. (Additional articles will address the inherently problematic “exceptions” to uniform zoning ordinances.) Thus, uniformity is a Constitutional standard.
Also, zoning regulations must be related to “public health, safety, morals, or general welfare.” Nectow, 277 U.S. at 276.This is also reflected in the Pennsylvania MPC. See § 604. In other words, zoning cannot be arbitrary, individualized, or for just any reason. The rational must be community-focused.
In Pennsylvania, the MPC defines the statutory requirements for zoning (but be careful because this document only addresses the statutes, not federal laws nor Pennsylvania court cases). In simplest terms, zoning serves an important purpose in your community because it helps to protect your property investment, helps to minimize legal nuisances, and helps to manage taxes by coordinating development activities.
As noted above, zoning must be uniformly applied and consistent with a community plan. Therefore, obtaining “exceptions” to zoning such as variances, “re-zoning”, or even special exceptions or conditional uses are weighty tasks. These tasks are not government “telling people what to do” or money-making enterprises for local government. They are a reasonable balancing of the interest of the whole community (as defined in the comprehensive plan and zoning ordinance) with the interest of an individual seeking a special exception or a special status.
For more information, the Pennsylvania DCED publishes a good Planning Series of ten documents and are available for free. See Planning Series (scroll about 2/3 of the way down the page), Planning Series 04 is the Zoning book.
While written by an attorney, the above represents general legal information as a public service and not legal advice. Seek legal advice from an attorney for specific projects and situations.
* A legal nuisance differs from the common usage of the word nuisance. The common word describes many annoyances. A legal nuisance is a nuisance for which the law provides a potential remedy. Usually, legal nuisances require some type of objective unreasonableness to the annoyance or nuisance behavior and usually some type of repetitive behavior.
Many ask what a business should do when uncovering a suspected data breach in Pennsylvania. Unfortunately, the answer can be quite complex depending on the business, the nature of the suspected breach, and the data involved. The legal consequences of a data breach, not to mention the business consequences, can be startling to the unwary.
Foremost, response to a data breach should start before the data breach even begins. A business should have a data security assessment conducted by a qualified cybersecurity attorney to create a baseline and to create a data breach action plan—see The Unwitting Cybersecurity Trap: The Risks of Relying on Technology Consultants article for why simply having a tech firm perform these tasks might not be good enough and might create even more problems for the business. The data breach response plan typically outlines who must be contacted, what forensic information should be collected, risk profiles depending on the data, an inventory of data types, data storage locations, backups, and other action items. With a data breach response plan, the business can contact the data breach attorney and start implementing the data breach response plan when a data breach occurs.
OK, let’s just say you are not in this ideal situation, are a Pennsylvanian business, and have no data breach response plan.
Foremost, a patchwork of laws, regulations, and industry standards govern data breaches. Laws and regulations might issue from federal authorities or from state authorities. There is also a difference between criminal and civil obligations. Typically, a business must comply with applicable federal and state data breach requirements. This is why data breaches are a legal issue, not just a technical issue.
For example, in Pennsylvania, the general data breach law is 73 P.S. §§ 2301 et seq. (Other states may have different, state-specific data breach reporting laws.) Essentially, the Pennsylvania law specifies that a business must generally provide notification to individuals if a breach of personal information occurs without unreasonable delay.
bank information along with the access code or similar codes.
Finally, the required notifications must issue “without unreasonable delay.” 73 P.S. § 2303. Unfortunately, the statute does not define “unreasonable delay” and, to the best of my knowledge, no court has yet analyzed that requirement.
While the notification requirements seem straight-forward, what the requirements mean is defined legally. This can be a real “gotcha” for some businesses. That is, for example, it is not your personal opinion regarding “unreasonable delay,” what you think sufficient notification means, or whether you need to notify credit reporting agencies (and which ones). These are legal questions, and thus, legal standards apply. What needs to be done requires a legal analysis of the circumstances (and this is usually far easier and far more complete when done ahead of time).
Failure to follow the data breach reporting law may, at minimum, result in a legal action by the Attorney General. Interestingly, the attorney general’s action falls under unfair and deceptive trade practices. In other words, data security is an implied duty of the business and failure to protect data is viewed as a deceptive or unfair trade practice. Thus, not only does your business potentially suffer the stigma of a data breach, but it may also be sued by the Commonwealth for unfair and deceptive trade practices. (This is yet another reason why a business should contact a data breach lawyer before a breach occurs to begin setting up a legally defensible due diligence plan and to check insurance contract coverage.) There also could be civil liability from vendors, subcontractors, banks, credit card companies, etc.
Computer crimes laws relate to data breaches but are not the same. Pennsylvania has several computer crimes laws. See 18 Pa. C.S. 7601 §§ et seq.
The Pennsylvania Computer Crimes laws may sound like an easy-out for unwary businesses—with a business mistakenly assuming that you just call the police, and the police will “handle it.” But data breach reporting requirements and the criminal prosecution of alleged computer crimes are distinct obligations. Furthermore, data breach reporting and computer crimes prosecution may require coordination with law enforcement but may require protections for the business from government overreaching or government errors. See 73 P.S. § 2304 (requiring cooperation with law enforcement but providing no statutorily defined protections for the business). Again, all is not as simple as it seems.
The above provides general information about Pennsylvania data breach reporting laws. Pennsylvania, as most states, has had a data breach reporting law for over a decade. But Pennsylvania law is not the only law that a Pennsylvania business needs to consider.
Cybersecurity as an Unfair Practice: FTC Enforcement under Section 5 of the FTC Act. Other states, even under federal law, might not have such requirements causing confusion. Special data reporting may be required in medical and banking data breaches or in other industries. A data breach might also trigger contractual, professional licensure, or vendor obligations (requiring notification of contractors or subcontractors).
Often forgotten, Pennsylvania businesses may need to comply with out-of-state reporting requirements under some circumstances depending on the business’ customers.
Navigating data breach reporting can be daunting and is fraught with traps for the unwary.
The Suffolk Journal of Trial and Appellate Advocacy law journal published Peeking Inside the Black Box: A Preliminary Survey of Technology Assisted Review (TAR) and Predictive Coding Algorithms for eDiscovery (21 Suffolk J. Trial & App. Advoc. 221, 221-286 (2016)). The article explores the sometimes complex and arcane technical language of predictive coding, keyword search, and technology assisted review (TAR). As a lawyer and experienced technology professional, the article explores how these new-to-the-legal-community technologies work along with the limitations and benefits of the technologies. With extensive notations (300+ citations), the well-cited article imports academic literature from machine learning, natural language processing, information retrieval, and statistics to explain how predictive coding and machine learning work in an eDiscovery context.
Shannon Brown teaches eDiscovery technologies at Widener School of Law. The teaching provides insights into the educational needs of the legal community. Shannon Brown is also the author of open source eDiscovery software (Prolorem eDi) used for law school classes and by legal community members.
In August 2016, the Clarks Summit Borough Council selected Attorney Shannon Brown to fill an open seat on the Clarks Summit Borough Planning Commission.
Along with legal training, Shannon brings experience as a professor of community and economic development and prior experience servingd as a planning commission member in Lancaster County and in New York State. He brings specific legal training in Land Use Law, Environmental Law, and Business Law with academic publication on the intersection of local land use law and federal environmental regulations.
Shannon has close family in Clarks Summit and 27 years of familiarity with the area.
The FAA now requires registration and labeling of all outdoor drones (unmanned aircraft systems or UAS) by February 19, 2016. According to the FAA UAS Website, electronic registration is available for hobbyists, as defined by law, fro drones weighing less than 55 lbs. and paper registration must be used for all other drone registrations including commercial uses. Registrations for hobbyists using the electronic system last for three years and cost a nominal $5.00.
The long over-due registrations arose due to numerous complaints and dangerous incidents—many where tracing the offending operator is difficult or impossible due to the lack of registrations. On December 11, 2015, the Center for the Study of the Drone at Bard College released a disturbing report showing 921 drone incidents from December 2013 to September 2015. An astounding 327 of those drone incidents presented “some level of hazard” to manned aircraft and 594 other cases where drones were spotted “near or within” aircraft flight paths. According to the BBC, an 18 month-old child in the UK recently lost an eye to a drone.
The renewed effort by the FAA to hold drone operators responsible appears reasonable and proportionate considering the known dangers. I have publicly called for such measures since at least February 22, 2014, due to the clear danger and need for accountability (when a drone takes down a passenger aircraft or your child loses an eye, who will pay for the losses?). The FAA has now implemented many of those suggestions including the much-needed No Drone Zone. The FAA provides a helpful FAQ for reliable information on drone (UAS) use.
Non-hobbyist uses, such as commercial and government use, still require additional approvals prior to operation of the drone. Note that the FAA alone defines model aircraft, hobbyist, and recreational uses. According to the FAA, other uses require special permission and possibly a pilot certificate.
Rapho Township appointed Shannon Brown to serve a four-year term on the Rapho Township Planning Commission. The appointment occurred in January 2015. The Planning Commission reviews subdivision and land use applications in Rapho Township and makes recommendations to the Rapho Township Supervisors.
Attorney Brown brings past experience in land use law, sustainable agriculture (former farmer), sustainable community development, real estate law, and environmental law—with academic publication on environmental law and local land use regulations. Prior to becoming an attorney, Shannon served on a county Planning Board and completed training in land use, subdivision, and storm water regulations.
Considering the increasing number of data breaches, “hacking” episodes, and cybersecurity incidents over the past few years, businesses are finally starting to take cybersecurity and data security seriously. Businesses also realize that responsibility for data security is shifting from the IT staff to the Board and senior leadership.* However, some businesses still do not realize that data security is primarily a legal issue for business, not just as IT issue. Therefore, relying on technical consultants for legal problems may unwittingly create problems for a business.
Almost all states now require some form of data breach reporting. Businesses, so far, have ducked liability in the courts from data breach damages. But, victims continue to put forward novel theories and liability lurks.** The costs of defending against such a lawsuit can be significant. Furthermore, damages from a cybersecurity incident, such as recovery costs, mitigation costs, notification expenses, monitoring fees, lost business (about 50% of cybersecurity victims abandon the business), and consultant costs, may lead to legal action from shareholders. Businesses also face a myriad regulatory and compliance requirements. For example, the FCC recently levied a $10 million fine against two businesses for failing to protect data—and more actions are coming from both federal and state agencies including new unfair-trade-practices claims.*** The take-away: cybersecurity raises important legal issues.
might place the hiring businesses at significant risk—albeit often not obvious until a problem later arises.
all of the work done by the technical consultants, including reports, network diagrams, infrastructure diagrams, personnel involved, observations, analyses, and decisions made, becomes fully discoverable (exposed) in a subsequent lawsuit—meaning the business will likely need to turn-over all this information to the opposing side.
Addressing the cybersecurity trap involves a simple readjustment of the relationship between the business, consultant, and attorney. The business first engages an attorney knowledgeable in cybersecurity. Under the direct supervision of the attorney, the business hires a cybersecurity law firm. The cybersecurity lawyer then mitigates between the cybersecurity technical team and the business.
gains potential protection from disclosure because the work was conducted under the direction of an attorney (the business and attorney can assert attorney-client privilege and attorney-work-product doctrine in the event a incident occurs later).
Businesses trying to do-the-right-thing might unwittingly waive some important, potential benefits from cybersecurity analysis. When direct hiring a cybersecurity consultant to address legal issues related to technology, the business likely waives the potential benefits of attorney-client privilege and attorney-work-product protections. These protections may become important should a data breach, “hacking,” or cybersecurity incident occur later.
Cybersecurity and data security increasingly becomes a hot-button issue for most businesses. Unfortunately, technology consulting firms offering cybersecurity services might be placing businesses at risk or reduce the benefit of such services. Reducing that risk simply involves seeking competent legal advice from an attorney.
* See, for example, Todd Sexton, CEO responsibilities for data breach, Homeland Security Wire (Feb. 13., 2015) ; David Geer, Why the Board of Directors Will Go Off on Security in 2015, CIO Magazine (Dec. 10, 2014); or Shannon Brown, The Next Battleground for Data Breaches…Shareholder Lawsuits? (Apr. 11, 2014).
** But this is quickly changing as companies, not individuals, bring the lawsuits. Meagan Geuss, Judge rules that banks can sue Target for 2013 credit card hack, Ars Technica (Dec. 4, 2014).
*** Brian Fung, With a $10 million fine, the FCC is leaping into data security for the first time, Washington Post (Oct. 24, 2014).
**** One exception may be PCI compliance because PCI compliance is an industry standard and not necessarily a legal regulation per se. But because related issues may be at stake, this quickly becomes a slippery-slope.
Attorney and Adjunct Professor Shannon Brown taught a course on eDiscovery technologies such as keyword search, technology assisted review (TAR), predictive analytics, and predictive coding.
Unlike typical eDiscovery courses, which often gloss-over the technologies, law students became deeply engaged in the technical aspects of eDiscovery including completing a hands-on, simulated eDiscovery project using a freely available, predictive coding, reference platform and parts of the Enron dataset.
Students also learned in the law school course about the technical progression in eDiscovery from early TIFF load files, to keyword search, to technology assisted review (TAR) to predictive coding. Importantly, the law school course introduced the students to how some of the primary algorithms work–including keyword search indexing, Support Vector Machines (SVMs), logistic regression, clustering technologies (basic k-Means and k-Nearest-Neighbors), and Bayesian decision systems.
Students learned about several metrics used to evaluate eDiscovery software performance such as accuracy, recall, precision, F-scores, and probabilities.
A significant part of the law school course on eDiscovery also addressed predicate preprocessing issues, which have legal consequences, such as de-NISTing, understanding the difference between forensics and eDiscovery, feature selection, data matrices, stemming, natural language processing, latent semantic indexing, and generalization (overfitting and underfitting).
At the conclusion of the law school course, students were expected to be able to identify the types of technologies used in TAR, predictive coding, keyword, or other tools and be able to apply them to eDiscovery technical problems.
Other class topics included eDiscovery project management, understanding Big Data, basic case law, and eDiscovery best practices.
Widener School of Law-Harrisburg held the 16-hour, intensive program. The program is believed to be the first of its kind in the country–a course intensively focusing on understanding and applying the technologies and a notable simulated case using predictive coding.
As predicted, the NTSB reversed an earlier administrative law decision in Pirker and held that drones (UAS) are aircraft according to law and thus subject to FAA regulation.
Pirker moved to dismiss the allegations by claiming that drones were not FAA-type aircraft and not subject to FAA regulations (thus, Pirker claimed there was no violation because he was just allegedly operating a drone, not an aircraft).
In a very puzzling opinion and despite decades of administrative law, the administrative law judge nevertheless dismissed the FAA allegations and claimed that the FAA did not have authority to regulate drones (UAS) because drones were not “aircraft.” Pro-drone advocates trumpeted the questionable opinion. However, as I cautioned at the time, the law plainly gave the FAA regulatory power over drones.
The NTSB Appellate Court did not decide whether Pirker was liable but instead remanded (sent back to the lower court) for additional proceedings.
Pirker II, while disappointing to some drone zealots, illustrates proper administrative law interpretation. With the interplay of statutes, regulations, opinions, definitions, and other factors, interpreting administrative law can be complex. But as Pirker II shows, the law means exactly what it says. It is up to Congress to redefine definitions if they are incorrect or no longer applicable.
CIO Magazine recently ran an insightful article about PCI compliance. The article emphasizes that PCI “compliance” is a credit card industry minimum set of standards to protect data and to minimize data breaches. However, as the numerous data breaches over the past year attest, something appears wrong.
Yes, something is wrong. First, cybercriminals possess a level of sophistication that most businesses simply do not comprehend. Professional cybercriminal networks and state actors launched the recent data breaches—not a couple of teenage “hackers.” Second, businesses must understand that data itself, not just credit card numbers, has significant value in a well-developed, global market for data. Medical information, address information, employment information, legal information, company trade secrets, intellectual property, business acquisitions, financials, manufacturing systems, geolocation information, CAD drawings, etc. all have marketable value.
But another issue often goes overlooked. Businesses continue to myopically view data breaches as simply a technical or IT issue. Thus, business leadership (and even many attorneys unfamiliar with technology) might simply require the “IT people” to come up with a data policy, implement that policy, and monitor that policy. The problems with such an approach should be evident—and recent events should show that this strategy does not work.
Businesses must adopt a new paradigm for addressing cybersecurity, data breach, and data protection issues.
Data breaches and data protection are legal (including compliance), business, financial, and technical issues for a company. Thus, all elements must be directly involved in any policy-making, procedures, and implementation programs.
Simply delegating the issues to an IT department provides a recipe for failure—not because IT lacks professionalism or skill, but because this is not an IT problem alone.
Simply relying on a minimal “industry standard” might not be enough to protect a business from the spectrum of threats and duties—financially, reputation-wise, procedurally, legally, or legal-compliance-wise.
Businesses should seek legal help with developing proactive policies and procedures to handle data retention, legal compliance, data breach preparedness, data breach response, eDiscovery, and cybersecurity incidents. Legal counsel can advise board and officers on compliance issues and the sufficiency of an organization’s efforts.
Businesses may increasingly need to consider cybersecurity insurance to help cover the costs of data breaches.
In October 2014, the Pennsylvania CLE Board Website added a new category for lawyer CLE programs called Ethics–Technology (new ETH10).
Attorney Shannon Brown requested the additional category in light of the Pennsylvania Supreme Court’s changes to the Pennsylvania Rules of Professional Conduct effective November 2013. The 2013 updates to the Pennsylvania Rules of Professional Conduct specifically require Pennsylvania lawyers to possess personal knowledge of the “benefits and risks associated with relevant technology.” Thus, technology stands as an ethics issue for lawyers.
The same changes also notably affect Rules Rule 5.1 (Responsibilities of Partners, Managers and Supervisory Lawyers) and 5.3 (Responsibilities Regarding Nonlawyer Assistance). Lawyers can no longer merely “delegate” technology issues to non-lawyer staff or to outsourcing providers—see Comments 1-5 to Rule 1.1 which indicate that the lawyer, if faced with a competence issue, must associate with a lawyer with the requisite knowledge. Note that the issue of lawyer competence and experts now clearly diverge although many lawyers confuse the two. Technology is a lawyer competence duty and thus cannot be delegated as attorneys do when acquiring simply advice from experts on specific, non-lawyer, issues.
Ethics programs will need to increasingly address issues such as data breach, information security, risks of cloud computing, encryption, information security law, information technology law (as distinct from “intellectual property,” eDiscovery, technology assisted review (TAR), and security audits.
Attorney Shannon Brown will teach a course on eDiscovery technologies at Widener University School of Law on January 5 and 6, 2015. The new course, taught by a lawyer with direct technology knowledge, explores the critical, technical aspects of eDiscovery. Most discussions of eDiscovery gloss-over the technical issues. But as this course will demonstrate, the implementation of the technologies themselves carry significant and surprising legal consequences and thus are part of a lawyers legal duty to clients—that is, the lawyer cannot just “outsource” the “technical”aspects to non-lawyers.
Today’s law practice deeply involves competence with information technologies. Lawyers must be familiar with information technologies as part of a lawyer’s ethical duty to clients. Clients also increasingly demand that attorneys manage legal costs by properly applying technological efficiencies.
But at the same time, lawyers face a deluge of electronically stored information (ESI) unlike anything seen before and occurring in even simple litigation. Manually weeding through gigabytes of emails, texts, tweets, geolocation data, social media content, corporate ERP systems data, database content, and document management systems output to respond to eDiscovery requests or to analyze materials received from opponents can quickly overwhelm—or even be impracticable.
maintaining, or enhancing accuracy and integrity.
Knowing what these technologies are, how they work, what the limitations and pitfalls are, and how to deploy them is what this course is all about.
hands-on use of a predictive analytics tool while performing a simulated eDiscovery task (to apply the theory discussed in class).
Thus, at the conclusion of the course, the student will be able to evaluate whether eDiscovery tools are appropriate for a case, understand the various types of tools, be able to discuss the strengths or weaknesses of each type, be able to apply the primary metrics associated with TAR, and understand the project flow for a basic case.
In May 2014, the Texas Bar Association’s Professional Ethics Committee released Opinion 642 barring law firms from using the title “officer” or “principal” in non-lawyer job titles such as Chief Information Officer. Shockingly, the opinion unleashed a howl of protest from lawyers—even some who should know better. My comments are not specifically about the Texas Bar’s opinion but about the broader implications of such opinions on a changed profession.
Opinion 642 merely states that because the organizational terms “officer” or “principal” imply an ownership interest in a business and because legal ethics rules prohibit non-lawyer ownership of law firms, using such titles misleads. See Opinion 642 at 1-2. This seems logical and obvious considering the current legal rules prohibiting non-lawyer ownership of law firms.
Yet, the surprising protests seem to be arising, at least in part, from the misguided perception of somehow “demoting” law firm CIOs or of viewing non-lawyers as somehow “unprofessional”—the latter confusing the term-of-art “professional” with the common adjective professional or common noun professional. But the former requires more discussion—using non-lawyer CIOs.
I have seen no one questioning in the legal community in general whether the profession needs or should still be using non-lawyer CIOs. The Texas Bar Opinion indirectly sheds light on this general challenge for the profession.
The 2012 revisions to the Model Rules of Professional Conduct (as states such as Pennsylvania adopted—see the ABA Policy Implementation Committee’s list of adopting jurisdictions) fundamentally recognized the changes evident in the legal profession. The 2012 revisions expressly make technology awareness a lawyer competence issue (Rule 1.1).
To maintain the requisite knowledge and skill [lawyer competence], a lawyer should keep abreast of changes in the law and its practice including the benefits and risks associated with relevant technology….
Furthermore, the same Rule revisions also updated Rules 5.1 (supervising attorney duties) and 5.3 regarding supervision of non-lawyer personnel. The natural implication of these revisions fundamentally transforms law practice duties. Law firms can no longer just outsource that “technology stuff” to non-lawyers because “that technology stuff” is fundamentally law practice (via Rule 1.1), and Rule 5.3 enhances duties for supervising non-lawyers. See Pennsylvania’s New, Technology-related, Ethics Rule Changes for Lawyers for more details.
Thus, law firm CIOs should be lawyers with deep technology skills to properly both 1) advise lawyers on lawyer duties of legal competence and 2) importantly to properly supervise the IT staff (via Rule 5.3). But, we still seem to have lawyers with out-dated perceptions on technology that apparently claim that technology can merely be outsourced—wrongly assuming, after all, that technology “isn’t” law practice. If the lawyer simply delegates the “technology issues” to a non-lawyer because the delegating lawyer doesn’t have the skills, how is the lawyer fulfilling Rule 5.3 supervisory duties or Rule 1.1 competence?
I often get the feeling that many lawyers still think of technology as they do experts. That somehow, one can simply delegate to an expert. But, experts play a very different role in the legal community and in the legal process than the ongoing, daily operations of a law firm and the revised requirements of lawyer competence. Experts do not be run cases; lawyers do. In the same way, lawyers must be familiar with the technologies, not simply delegate those core legal functions to others unless the delegating lawyer has the personal knowledge and skills to properly supervise the delegation per Rule 5.3. That also means that senior partners cannot just delegate technology issues to office staff, paralegals, or junior associates.
To further illustrate the problem, consider the “legal services” companies which have sprung-up to offer technology-related “legal services” to law firms and often by non-lawyers—work with a technology-related character such as eDiscovery, cybersecurity audits, and compliance. To date, only the Washington DC Bar Association has taken on this issue and correctly holding that these “technology” services companies provide legal services and thus must be run by lawyers. Other jurisdictions will follow.
Times changed (past tense intended). Yet, as the protests related to Texas Opinion 642 indirectly reveal, many in the profession remain stuck in out-dated thinking and avoidance of the reality of today’s legal profession. The officer-title-issue in Bar Opinion 642 unveils a much wider crisis in the profession. The profession also suffers a serious crisis in training lawyers to be today’s lawyers—training which must include solid technology skills and technology understanding (not just the same old, out-dated, law practice management schtick which simply doesn’t cut-it any more). Hopefully, the Texas Bar Opinion will raise awareness of the troubling assumptions made by some of the protestors and will illustrate the broader implications that opinions like this one reveal about a changed profession.
The American Bar Association (ABA) adopted a startling resolution on cybersecurity at its August 2014 meeting. The ABA resolution urges all businesses, law firms, government agencies, and organizations to take cybersecurity seriously and to conduct regular reviews of security posture. But, the most import aspect of the resolution is, finally, the formal recognition that cybersecurity is not just a technology issue but fundamentally a legal, business leadership, management, and technical issue.
The Cybersecurity Resolution also summaries the recommendations for organizations.
It is imperative that all organizations—private sector companies and other organizations, government departments and agencies, and professional firms such as legal, accounting, engineering, and consulting entities—develop, implement, and maintain an organization-wide security program in accordance with accepted security frameworks and standards. Today, too many organizations and entities—including critical infrastructure companies—have completed some activities within a security program, but not all, making them easy targets for sophisticated cyber-criminals. The lack of a disciplined process for the selection of security controls and ongoing reviews are two of the most serious gaps in security programs. Likewise, many organizations do not devote adequate funding to address known gaps and deficiencies in their security programs or to ensure that their organizations have well-developed plans to enable them to respond adequately to incidents and maintain continuity of business operations. Id. at 13.
Attorney Shannon Brown, as a cybersecurity lawyer and long-time information technology professional with real, hands-on technology skills, welcomes the Resolution—albeit perhaps long overdue. Cybersecurity, information security, information governance, data breach, disaster recovery planning, and overall data protection fundamentally require a new-breed of data lawyers who can address the business, technology, and legal aspects of these complex issues. Developing solid cybersecurity policies and procedures, implementing BYOD policies, evaluating systems for compliance with legal regulations (such as HIPPA), performing cybersecurity audits, and performing cybersecurity evaluations all require legal guidance, not just technical measures—as the ABA now attests and as Attorney Shannon Brown has argued before.
Today’s business owners and officers, as part of their fiduciary duties, will need obtain competent legal advice from a data attorney / cybersecurity attorney to assure that the business owner meets his duties to protect data and to properly address issues.
My comments urge the FAA to uphold Congress’ definition that limits model aircraft use to “visual line of site” according to the FAA Modernization and Reform Act of 2012 § 336. The comments also challenge claims that limiting hobbyist uses of goggles, telescopes, binoculars, spotters, and other artifices somehow “damages” businesses providing these devices.
The full text of the comments is below.
I submit the following comments to 79 FR 36172 (FAA– 2014–0396).
As the FAA recognizes, an administrative explanation of “visual line of site” appears superfluous. Congress plainly specified “visual line of site” as an absolute touchstone for a device falling into the definition of “model aircraft.” See FAA Modernization and Reform Act of 2012 § 336.
The distinction appears necessary looking at recent history regarding UASs (more commonly, drone aircraft). In the FAA’s attempts to be helpful, operators continue to ignore or press-the envelope on a potentially dangerous and problematic activity, without accountability, and then use the FAA’s “help” against the FAA and the public—see the recent Pirker, administrative law decision related to the 91-57 where the FAA’s longstanding, helpful guidelines were used to effectively strip the public of protection (albeit a decision stayed on appeal). Goggles are prohibited from model aircraft operation because Congress, not the FAA, deemed them so.
Several outlets maintain that the new “rule” will “damage” UAS-related businesses—especially those businesses associated with video-feed devices for drone aircraft. First, businesses take risks attempting to be early to market. The public, nor the FAA, must “guarantee” against alleged business “losses” from those risks.
Second, such devices, without testing, hardening, and certification, pose obvious risks to the public and add yet another avenue for failure in UASs. Those risks, as Congress determined, are beyond the needs of hobbyist purposes. The added risks arise from an operator who would need to rely on both the radio frequency communications to the drone aircraft and the radio frequency feed from the camera. Either can fail. And radio frequency interference remains an unanswered issue with these types of aircraft.
Third, the prohibition on goggles and other artifices applies only to “model aircraft”—thus aircraft used for hobbyist and recreational purposes. Nothing appears to limit these businesses from developing such devices or artifices for commercial uses. And commercial uses imply a heightened awareness of risks by a business and then adequate accountability measures (insurance, certifications, testing, etc.) to limit the risks. Thus, Congress’ intent appears to logically address the safety issues associated with such devices by limiting the devices to accountable situations via the indirect pressure of business accountability.
The point here is that businesses cannot seriously argue “damages.” Congress plainly defined the law on model aircraft and that Congressional definition, not FAA explanation, obviates visual artifices in model aircraft.
Most Pennsylvania law firms either misunderstand cybersecurity [computer and network security] or significantly underestimate the threat of data breaches at law firms. Successful “hacks” can result in the loss of client confidential data or even losses of escrow funds. Considering the November 2013 updates to the Pennsylvania Rules of Professional Conduct, data breaches might now lead to ethics problems—see Pennsylvania’s New, Technology-related, Ethics Rule Changes for Lawyers for a discussion of the recent, information technology-related changes to the ethics rules.
Lawyers in firms of all sizes must start taking cybersecurity seriously. Lawyers should both 1) seek advice on information security compliance from skilled legal-technology experts and 2) perform a law firm security “audit” or law firm information security assessment to see where the firm stands on information security.
Many lawyers labor under outdated perceptions of computer security—”no one would hack me, we are too small of a law firm, we have anti-virus (I think), my nephew looked at that, etc.” Ten years ago, a current anti-virus program, good backup, and perhaps a basic firewall might meet minimal data protection standards. At that time, “computer viruses” were inconvenient but fairly straight-forward to detect. Similarly, a basic and properly configured firewall might have kept many cyber-attackers from improperly accessing law firm computer systems and networks (or at least make attacks harder and encouraging attackers to move on to lower-hanging -fruit).
No more. Cybercrime now rivals the illicit drug trade for criminal activity—with one estimate placing cybercrime costs at $400 billion per year. [See, e.g, Ericka Chickowski, Worldwide Cost of Cybercrime Estimated at $400 Billion, Dark Reading (June 9, 2014)] And law firms are specific targets due to the sensitivity of the data a law firm handles.
Well-established black and grey markets in data now exist and drive today’s cybercrime because data itself has value. These data-markets eagerly pay for social security numbers, bank account information, health care information, credit card data, “social” media information (to target spear-phishing attacks) and a myriad of other data types about anyone. Thus, the new data-markets change the nature of cybersecurity risks.
Cybercriminals no longer just want to smash-and-grab data, steal a credit card to make purchases, or “hack” a law firm’s website (although these types of attacks still occur). The cybercrminals now deploy longer-term and stealthy malware infections that siphon valuable data out of your systems over long periods of time. The latest reports indicate that data breaches, because they are so insidious, now take over 7 months to detect (and that is considering organizations who have information security teams).
Extremely sophisticated and often targeted malware now replaces yesterdays primitive “computer viruses.” The new malware may siphon data from compromised (pwned) systems for months or longer before detection—raising a serious issue for lawyers who must assure the confidentiality and integrity of evidence. To emphasize how bad out-dated advice is, the iconic, anti-virus industry company, Symantec, recently admitted that anti-virus programs alone are now ineffective, [see, e.g., Dan Goodin, Antivirus pioneer Symantec declares AV “dead” and “doomed to failure” ArsTechnica (May 5,2014)], and cybersecurity professionals apply new techniques to avoid dependence on outdated “anti-virus” products [See, e.g., Legacy cybersecurity products failed to protect 97% of organizations, Help Net Security (May 21, 2014)].
Finally, cybersecurity threats now arrive not just from laptops or desktops but also from a myriad of consumer-grade mobile devices—tablets, “smart” phones, and even automobiles—which lawyers are eagerly integrating into law practice without considering the implications.
The take-away here is simply: the game has changed significantly (and continues to change) so don’t rely on ten-year-old assumptions about computer security or underestimate these threats.
Cybersecurity must be taken seriously but should not breed fear or hopelessness. Generally, law firms and lawyers should think about the following when evaluating information security risks in an organization.
Information security is a distinct field in computing and requires special skills to do well—skills including technical, business, direct industry expertise, data classification techniques, and compliance. Relying on advice from the first-lawyer-in-town-with-an-iPad (as somehow demonstrating technology competence), your nephew who is a real “computer whiz,” or that corner “computer shop” might be a costly mistake (and with the November 2013 changes to the Pennsylvania Rules of Professional Conduct, might also lead to ethics issues for the firm). Get professional help.
Cybersecurity also implicates other critical areas such as law firm data backups, disaster recovery plans, data retention policies, mobile device (BYOD) policies, computer-use policies, outsourced vendor vetting, data compliance, “cloud” computing, lawyer ethics, and state or federal laws (such as Pennsylvania’s Breach of Personal Data Reporting Act). The point here is that just a sign-off from a “computer person” is not good enough—as the 2013 changes to the Pennsylvania Rules of Professional Conduct imply (see Rule 1.1 and 1.6 and new comments to these sections which require the lawyer, not the delegated third-party, to have competence in these issues or that the lawyer seek a ethically competent associate to assist).
Firms should understand that the current cybersecurity best-practices mentality no longer focuses on keeping the cybercriminals out, as was the case ten years ago, but on taking reasonable actions to mitigate such breaches assuming they occur. This will force law firms to take a “hard look” at their data integrity practices to include correct use of encryption, intrusion detection or intrusion prevention systems, layered-defenses, minimization of data exposed on systems (by adopting legally defensible data retention policies), active firewalls, malware detection systems, limited administrator rights, VPNs for all data connections (including from “smart” phones and mobile devices), proper patch and upgrade management, encrypted email connections (and possibly even emails themselves), limiting outside vendor access to internal systems, and re-evaluating “cloud” computing (which might not be the “deal” that it seems).
Do a thorough hardware and software “inventory” at the organization. Threats can easily originate from what-you-didn’t-know was still lurking at your office. The organization cannot take reasonable actions if the organization doesn’t know what it has. That old WI-FI router, out-dated Windows XP computer (which, in my opinion, is a serious, per se ethics violation if still used in a law firm today), new iPad, or the dusty server sitting in the closet may unknowingly be exposing you to data loss.
In summary, awareness that a data security problem exists is the first step for many lawyers—but only a first step. After recognition, Pennsylvania lawyers can take reasonable steps to better protect both client confidential information and law firm data. While those steps may be alien to some attorneys because they involve technology, those steps have quickly become standard practice for law firms (and businesses).


1.	What notice must the Lawyer and the Old Firm provide to the clients for whom the Lawyer is the principal handling attorney [n.3] and when must that notice be provided?
2.	How are file transitions handled in this context?
3.	After the Lawyer has left the Old Firm, may the Lawyer discuss the possibility of handling work for clients of the Old Firm with whom the Lawyer has had a prior professional relationship?
Therefore, both the Lawyer and the Old Firm have a duty under RPC 1.4(a)(3) to inform the clients affected of the Lawyer’s departure.
“This can be accomplished by the lawyer herself, the responsible members of the firm, or the lawyer and those members jointly. Because a client has the ultimate right to select counsel of his choice, information that the lawyer is leaving and where she will be practicing will assist the client in determining whether his legal work should remain with the law firm, be transferred with the lawyer to her new firm, or be transferred elsewhere.” Id. at 3 (footnote omitted).
As noted, RPC 1.4(a)(3) requires that a lawyer “keep the client reasonably informed[.]” RPC 1.4(a)(3) does not set a specific timeline. Rather, Comment 5 to RPC 1.4 suggests that the timing of communication must be reasonable under the circumstances: “The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of the representation.” ABA Formal Opinion 99-414 notes generally that “informing the client of the lawyer’s departure in a timely manner is critical to allowing the client decide who will represent him.” Id. at 3 (footnote omitted). Although notice would ordinarily occur prior to the Lawyer’s departure from the Old Firm, it could occur afterward if the Lawyer’s resignation or termination took effect without advance notice to the other party.
File transitions from the Old Firm to the New Firm that result from the Lawyer’s lateral move are generally subject to the same considerations as when a client moves a matter from an Old Firm to a New Firm for other reasons. [n.10] As noted earlier, the decision on whether the client chooses to keep the work involved at the Old Firm, move it with the departing Lawyer to the New Firm or shift it to another firm altogether is the client’s alone. The Washington Supreme Court in Barr v. Day, 124 Wn.2d 318, 329, 879 P.2d 912 (1994), described this preeminent right of a client to choose legal counsel: “Unlike general contract law, under a contract between an attorney and a client, a client may discharge the attorney at any time with or without cause.” See also RPC 1.16(a)(3) (requiring withdrawal if a lawyer is discharged).
Upon receipt of a client’s written instruction to transfer a file to New Firm or a third law firm, Old Firm has a duty to transfer the file as soon as reasonably possible to avoid prejudice to the client and departing Lawyer has a duty to cooperate as needed to facilitate a timely transfer. In addition, Old Firm has a duty under RPC 1.4 to keep the client reasonably informed about the status of the file transfer.
After Lawyer has left the Old Firm, RPC 7.3(a) governs a Lawyer’s ability to contact Old Firm clients for whom s/he was not the principal handling attorney. At this writing, the Washington State Bar Association’s Board of Governors has recommended that the Washington Supreme Court amend RPC 7.3(a) in a way that would broaden Lawyer’s ability to solicit professional employment from Old Firm clients so long as the solicitation does not violate any of the four prohibitions in the proposed revision. Readers are encouraged to consult the most recent version of this rule available on the Washington courts’ website.
The personal dynamics of a lawyer departing a firm have the potential to outrun the important professional obligations all concerned have toward the clients involved. Lawyers and their respective Old and New Firms must ensure that client considerations remain paramount despite the often-difficult personal dynamics involved.
1. See generally Robert W. Hillman and Allison Martin Rhodes, Hillman on Lawyer Mobility (rev. 2d ed. 2017); Geoffrey C. Hazard, Jr., W. William Hodes and Peter R. Jarvis, The Law of Lawyering, § 15.11 (rev. 4th ed. 2016).
2. This advisory opinion focuses primarily on the departure aspect of lawyer mobility and the corresponding duties of the departing Lawyer and the Old Firm. The New Firm, too, has obligations in this setting. For example, job negotiations with a potential new-hire who is handling a matter opposite the New Firm may trigger conflict waiver obligations. See ABA Formal Op. 96-400 (1996) (surveying conflict issues arising from job negotiations with a lawyer representing an adverse party). Similarly, the New Firm should also be attentive to imputed conflicts under RPC 1.10(a) and potential screening to address those conflicts under RPC 1.10(d). See generally Daines v. Alcatel, 194 F.R.D. 678 (E.D. Wash. 2000) (applying Washington law and discussing lateral-hire screening).
3. For purposes of this advisory opinion, the term “principal handling attorney” means a lawyer who is primarily responsible for a particular matter or who is the firm’s primary contact with the client for the client’s work at the firm. See ABA Formal Op. 99-414 (1999) at 2-3 (addressing lawyer departure issues under the ABA Model Rules and defining its scope in similar terms). This definition would apply, for example, to a partner who has primary contact with a client on a matter. By contrast, it would not apply to a junior associate who worked on occasional legal research projects under the partner’s supervision in the matter involved. The dividing line, however, is inherently fact-specific—subject to the general legal standard of whether a particular lawyer’s departure triggers a duty to keep the client informed of “significant developments affecting the . . . substance of the representation.” RPC 1.4, Comment 3.
4. Cf. Florida RPC 4-5.8; Virginia RPC 5.8. ABA Formal Opinion 99-414 has provided guidance nationally in this area since its adoption in 1999. Washington lawyers with offices in other states are encouraged to consult resources available in those states if the matters affected by a lawyer’s departure are being handled in other states. Regionally, Alaska and Oregon have advisory opinions discussing the issues involved. See Alaska Bar Ethics Op. 2005-2 (2005); Oregon State Bar Formal Op. 2005-70 (rev. 2015). Court rules, such as CR 71(d) on withdrawal and substitution, may also apply if the matter involved is in litigation. See RPC 1.16(c) (requiring compliance with court rules on withdrawal).
5. Washington RPC 1.4 is patterned on the corresponding ABA Model Rule.
6. The guidance quoted implicitly assumes that the Lawyer is still at the Old Firm at the time the notice is provided and, accordingly, still has fiduciary duties to the Old Firm. See generally Holman v. Coie, 11 Wn. App. 195, 522 P.2d 515 (1974) (discussing intra-law firm fiduciary duties); see also In re Smith, 315 Or. 260, 266, 843 P.2d 449 (1992) (disciplining lawyer for misrepresentation by secretly having clients of old firm sign fee agreements with his soon-to-be new firm and noting “such conduct is a violation of the duty of loyalty owed by a lawyer to his or her firm based on their contractual or agency relationship.”). If the Lawyer has already departed the Old Firm and is no longer bound by those fiduciary duties, the nature of the competitive information provided may be broader as long as it is truthful.
7. Many malpractice carriers have template forms for notification letters available for their law firm insureds. The Oregon State Bar Professional Liability Fund, for example, has templates available for both joint and separate client notice letters on its web site at www.osbplf.org. The Oregon templates are not state-specific and are generally consistent with both this opinion and ABA Formal Opinion 99-414.
8. A departing Lawyer is not obliged to take a client to a New Firm and may be precluded from doing so in some instances due to non-waivable conflicts. Similarly, an Old Firm may conclude that it is no longer able to competently handle a client’s work due to a departure even if a client does not move with a departing Lawyer. For example, a departing Lawyer may have been the only person at the Old Firm with the specialized expertise needed by the client concerned. When neither the New Firm nor the Old Firm is able to continue the representation, both the Old Firm and the departing Lawyer should work cooperatively to assist the client in obtaining new counsel.
9. This advisory opinion discusses notice to the clients affected as distinguished from the Lawyer’s notice to the Old Firm that the Lawyer is departing. The RPCs do not address the latter except that any contractual notice requirement cannot be so lengthy as to amount to a prohibited restriction on the Lawyer’s right to practice under RPC 5.6(a). See generally WSBA Advisory Op. 2118 (2006) (discussing RPC 5.6(a) within the context of contractual non-competition provisions); see also ABA Formal Op. 94-381 (1994) (discussing ABA Model Rule 5.6(a) and noting that courts have often refused to enforce restrictions that violate state variants of the ABA Model Rule). The question of whether the Lawyer has a fiduciary duty to inform the Old Firm of the planned departure before notifying the clients involved is a substantive issue of fiduciary and contract law beyond the scope of the RPCs. See generally Holman v. Coie, supra, 11 Wn. App. 195 (discussing intra-law firm fiduciary duties); RPC 1.6, cmt. 13 (“A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these Rules.”). As a matter of prudent practice, however, a lawyer contemplating leaving a firm should carefully examine any applicable fiduciary and contract considerations as well as the RPCs noted in this opinion. Similar fiduciary considerations apply to recruitment of Old Firm lawyers or staff while still with the Old Firm. In any event, a lawyer may not lie about the lawyer’s intentions. See RPC 8.4(c). ABA Formal Opinion 99-414 notes, for example, that a lawyer may generally conduct negotiations or explore alternative office space without telling the soon-to-be “old” firm, but the lawyer cannot lie about the lawyer’s intentions if confronted. Id. at 7 n.17.
10. This advisory opinion uses the term “files” to denote paper or electronic client files. It does not address the application of property or trade secret law to form templates or other generic materials that may be deemed proprietary by the Old Firm. See generally Robert W. Hillman, The Property Wars of Law Firms: Of Client Lists, Trade Secrets and the Fiduciary Duty of Law Partners, 30 Fla. St. U. L. Rev. 767 (2003). By contrast, “form” materials containing information classified as confidential under RPC 1.6 or applicable privilege law, should only be taken with the permission of the clients concerned.
11. Presumably, the first category could be addressed through amendment of the protective order or other confidentiality agreement involved to cover a New Firm. The second category is discretionary and may have less relevance when the same Lawyer is to handle the same matter at the New Firm.
12. Issues regarding accrued compensation, return of capital and entitlement to accounts receivable or other anticipated future fee income are matters of substantive contract and statutory law beyond the scope of the RPCs. See generally Dixon v. Crawford, McGilliard, Peterson & Yelish, 163 Wn. App. 912, 262 P.3d 108 (2011) (discussing the valuation of law firm partnership interest upon the withdrawal of one of the firm’s partners); McCormick v. Dunn & Black, P.S., 140 Wn. App. 873, 167 P.3d 610 (2007) (discussing valuation of law firm shareholder interest upon withdrawal of one of the law firm’s shareholders).
13. See also ABA Formal Op. 09-455 (2009) (discussing this issue generally prior to amendments to ABA Model Rule 1.6 and the Washington RPC 1.6 now reflected in RPC 1.6(b)(7)).
For a discussion of related issues of client identity specific to the attorney-client privilege, see generally Robert H. Aronson and Maureen A. Howard, The Law of Evidence in Washington, § 9.05[a] (rev. 5th ed. 2017).
15. Depending on the circumstances, lists of former clients and matters may need to be expanded in terms of the time covered so that potential former client conflicts under RPC 1.9 can be assessed.
16. If it is not possible for departing Lawyer and new Firm to evaluate a potential conflict of interest without disclosing client confidences to each other, one option might be to retain an intermediary lawyer to whom they may disclose client confidences pursuant to RPC 1.6(b)(4) and who may then analyze the conflict on their behalf. ABA Formal Op. 2009-455 (2009) at 5.


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The immersion into the sensual richness of the plastic of the body and its forms is the revelation of the first steps in art. The turning to modern art is search for archetypical formulae of life («Proposal». 1964, «A Garnet Bracelet», 1965, «Soul and Body», 1974, «Organ», 1974, «An Artist» (self-portrait), 1976, «A Family», 1977, «Birth», 1978).
The coming to find the specific features of one’s own intuition of rhythm and space in the series of compositions on the subject of labor, 1967 – 1987. The discovery of the principle of the gradual transposition of parts of a figure in the wholesome space of the sculptural composition («Welders», 1973, «A Blacksmith», 1975, «Movement», 1977).
The revelation of the composition in the Old Russian art. The attempt to reveal its principles in the three-dimensional space resulted in the discovery of the danger of disappearance of its sacral sense. The first realization of the need for canon – evolvement of the essence. (What does it mean – our aspiration for the purport? -- aspiration for God? -- for perfection and eternal life? Is it merely a lever of the natural selection? It is all these things combined). Experiencing spirituality at the level of the composition cosmos as purified rhythmically and musically.
The symbol of the aesthetically valuable space represents a spiral in its impulsive rhythm (zigzag) expanding upwards as a crater. The aspiring movement upwards as value. But this is not the absolute value of the vertical and the horizontal of the Cross. The plastic of the sculptural body, directed upwards, and moving in its inclined motion which underscores the overcoming, is being screwed into the growing and expanding space of the imagined crater-cosmos. The symbol of the aspiration of temporal and transient for eternal and perfect. The details are subordinate to the motion of the principal plastic mass in the ascending anfractuosity of space – the main aesthetic value of the composition.
This image, to what state of the soul does it mostly bear witness? – It is a soul that is not rooted in the Spirit, a restless soul (MOVEMENT), a soul which is prone to violence towards its own self and towards others (OVERCOMING), feeling a longing for elevated (ASCENDING), in the permanently nervous tension (ANFRACTUOSITY OF SPACE), but it is a soul that is also wholesome and harmonious in its own way (MAIN PLASTIC MASS – THE BODY OF THE SCULPTURE) («John the Baptist», 1977, «Steps», 1978, «Cathedral», 1978, «A Concert of S. Rikhter», 1979, «Therapontovo», 1979, «Opening», 1979, «Ascension», 1980, «Eternal Path», 1980, «In Memoriam of A. Rublev», 1982, «Transfiguration», 1983, «Cosmos», 1985, «Dream», 1986, «Wave-Running», 1994).
There gradually grows the feeling of the need for the presence in the composition as a center of an individualistic beginning from which emanates the crater-space. This center may be located at any point of that space, but the center always creates the space and always dominates in it. For the individualistic beginning needs an ethical and aesthetic harmony before anything else, and it is that harmony’s sine qua non («Memory», 1988, «PIETA», 1990, «Eternal Path», 1995, the memorial plaques to V. A. Favorsky and poet thinker D. L. Andreyev, and the model monument to F. M. Dostoyevsky, 1997). This invoked in me special interest in portrait, which had previously also been a subject of my attention – as personification of the national idea ( A Portrait of B. Tunegov, 1962, A Portrait of Brother, 1963, A Portrait of M. Voskresenskiy, 1967, «Nikon Mikhailovich», 1975, A Portrait of Mother, 1978, A Portrait of A. V. Vedernikov, 1984, A Portrait of D. Ye. Galkovskiy, 1985, «A. S. Pushkin», 1986, «Lyuba», 1987, A Portrait of F. S. Kharitonov, 1987, “D. I. Mendeleyev», 1988, A Portrait of V. Kikin, 1988, A Portrait of V. V. Rozanov, 1990, «Poet S. A. Klychkov», 1993). Overwhelming in the portrait is the ontological front view. The portrait of Rozanov is the only one that is «non-canonical», it is a three-forths view. (But so also is «The Savior» by Andrey Rublev).
The lofty content of the icon-image is becoming ever more clearly enunciated. The spiritual distance between the front and the realistic portrait is the distance between the way of life of an icon-painting monk and that of a secular painter. The mental realization of that distance has supplied me with an understanding of the limits of my own creative work. It helped me to concentrate quietly upon individual’s accessible levels in art – the realistic portrait, the nature study, the drawing. That coincided with the restitution of value to facts of ordinary life. The restitution did not involve, however, any abdication from the former acquisitions and took place in the hope of synthesis. (A series of nature studies, drawings, and portraits in 1985 – 1995, and later).
The model monument to V. S. Solovyov presupposes a symbolization of spiritual vision, which vision fills the personality of the thinker as well as the social idea that is connected with him and with his creative work. The divine light that has found reflection in the doctrines of V. S. Solovyov, and which has put a certain imprint upon his image, is symbolized in the portrait picture which is a kind of a part of the cross and stays in compositional connection with the architectural space of the monument that is opened outwards. The plasticity (=«the transiency, transitory character») is limited with the ontological vertical of the cross.
But what about the place, after all? (Rhetoric is an instrument of learning about oneself). Well, works of visual art have to be seen.

matches: V. V. V. V. V. V.