In his 12th-floor office at McCarthy Fingar L.L.P. in downtown White Plains, David A. Menken turns a desktop monitor to show the website of one of his several clients, both national and international, in the software technology field. Lullabot, a company that trains and advises website developers using Drupal, a popular open-source software for website creators, has sought Menken”™s legal counsel regarding its rights to the software content it develops and then shares in the public domain on the Drupal site.
“That”™s a really big issue now in open-source software ”“ what do you have to give back to the public?” Menken says. For content developers such as Lullabot that contribute to Drupal, “What do they own when they produce something?” They own the right to license that content, he advises.
The Lullabotians in a group photo on the company”™s home page show two common traits: smiling youth and casual-workday blue jeans. It was a rare corporate gathering, as the company”™s employees, like several of Menken”™s IT clients, work from their homes.
“At Lullabot, everyone works remotely,” says Menken, who, these days and nights, is more likely to meet a client on his mobile phone than over a handshake in an office. “That”™s a trend.”
For a lawyer or law firm with “virtual” clients, the trend begets a legal question: “If a company has 25 employees in 25 states with no offices, where are they doing business?” Menken has asked and pondered that one in his work.
Advising IT clients on legal issues, “It”™s new,” says Menken, who joined the 26-attorney McCarthy Fingar firm in January. “It keeps me always alert to new trends. It never gets boring. And it”™s also where the business is. In a sense I”™m following the money.”
“Working for companies involved in technology makes up most of my law practice,” says Menken, who tries to keep his phone free at night for emergency calls from the Bedford village fire department, where he”™s a veteran volunteer firefighter and emergency medical technician. “Within that, I work on a range of corporate and intellectual property and IT issues for my clients.” Increasingly he has focused on social media and privacy issues for businesses and government.
His clients include the Business Journal”™s publisher, Westfair Communications Inc., as it works with a digital media contractor to develop an expanded digital publishing and marketing platform that launches this month.
As clients like Lullabot represent a new breed of company, Menken represents a new and growing breed of lawyer ”“ plugged into the digital zeitgeist and adapting one”™s practice to represent clients on the myriad legal issues arising from new technologies. Those technologies are changing the way lawyers work just as they have changed the physical workplace for many of their corporate clients.
“This (IT) industry segment is growing,” says Menken, whose practice has evolved from his previous legal work in print and online magazine publishing and telecommunications. “There are a lot more lawyers doing it. Technology is making it easier to practice law without an army of people supporting you.”
“It”™s not a traditional legal field, information technology. Unlike mergers and acquisitions or complex litigation, it doesn”™t require a large legal team. Lawyers who work in IT seem to be more sophisticated with the use of technology to manage their law practice.”
Menken in his practice must keep current not only with the law and recent court decisions, but also with changes in technology and the constant spawn of social media companies and online sites.
“In my field, the technology is changing so quickly that it”™s really hard to keep up. Just when I thought I knew what the social media sites were ”“ Foursquare, Facebook, Twitter” ”“ a newly popular one pops up.
“Do you know what Pinterest is?” he asks. It”™s one of his more recent discoveries in the fast-propagating social media community.
Social media and their uses by employers and employees in both the public and private sectors have given rise to new legal issues, many of which have no precedents in state and federal courts. Reeling off cases he is tracking, Menken cites the pending case of an executive who left a company and took with him 17,000 followers he had on the company”™s Twitter account. His former employer claims that following is a proprietary customer list; the departed executive claims the followers are his own.
Menken increasingly counsels corporate clients on privacy issues and the creation of privacy policies for companies that collect information on their websites”™ users. He is creating social media plans for companies whose employees have access to social media in the course of business.
“There are things you should do in companies in order to head off any problems. It”™s better to have a social media policy before something happens,” he says.
With their social media plan, companies should have a privacy policy. While large corporations have those in place, “The other businesses in Westchester do not ”“ that”™s been my experience,” says Menken. “They are beginning to dabble in social media for marketing but without coherent guideposts, which they need and are not difficult to develop.”
“I think the law of privacy is really evolving to become much more important, and it”™s really pervasive at this point. Every company with a website or that obtains information needs to have a privacy policy, needs to have guidelines on what they can do with the data they obtain.”
Menken this month was certified as an information privacy professional by the International Association of Privacy Professionals. “I will be much better able to guide my clients in relevant privacy laws and how to safely do business in an era when privacy laws are evolving ”“ and what they have to do to comply.”
