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Legal Challenges In A Digital World

digital assets

We Are Living in a Digital World

Yes, we do still live in a material world as Madonna, the “material girl” so lyrically pointed out in her very popular song from the 1980’s. However, we also live in a digital world. That’s right. And the digital world is growing and gaining in importance in ways we can barely imagine. Most people are keenly aware of material assets yet are not remotely aware of the nature and value of their digital assets.

How to access, protect and distribute digital assets legally if someone should become impaired or die is the topic of many a legal discussion.(You can listen to a discussion between myself and our digital expert, George Ligon here: https://businessradiox.com/podcast/seniorsalute/digital-asset-administration/

And I must admit that the legal world is being challenged to pace with this new world we live in. There are some law firms that are keeping pace, though, and I like to think that ours is among them. George keeps us up-to-date on the digital world as well as other attorneys through his informative educational presentations.

As George often points out, most attorneys aren’t even quite sure how to define digital assets. I’m sharing excerpts from a presentation George makes to attorneys to help bring them up to speed. It is my hope that by gaining some insight into the challenges attorneys are facing in this new digital age, you will come to understand that you may need to review and update your current legal documents to appropriately include digital assets.

Excerpts From Digital Assets CLE, A Presentation By George Ligon

The fact is that lawyers, as a profession, are not generally known for being “cutting edge” when it comes to electronic innovation. Like most generalizations about lawyers, this is both accurate and unfair. In part, our general suspicion of the latest software is simply human nature – we have already figured out a system that works for us in our legal practice and are loath to alter the tried-and-true for something flashy and mystifying. To paraphrase the famous truism from Donald Rumsfeld, better the known-unknown than the unknown-unknown.

My law clerk had a guest speaker at his law school this past year who spoke about her successful bankruptcy practice. During her lecture she mentioned that she literally runs her entire law firm from her iPhone. She wasn’t saying that she can do it. She actually does do it. Payroll, PDF scanner, digital signatures, case management software, court filings, work email, call forwarding from her office line, etcetera. What just a few years ago took up an entire office suite now weighs less than a can of soda and is small enough to conveniently lose between the seat cushions of a couch.

Therein lies the real problem with digital assets from the legal perspective – the reality on the ground, or in this case, on the web, is not only evolving faster than we as a legal profession are keeping up, but it is also evolving faster than the law itself is even capable of keeping up.

The result of all of this, in the context of estate administration, is both that estate law is an imperfect fit for electronic assets and that lawyers are increasingly having to deal with assets that the lawyers have never even heard of before. Twenty years ago, a lawyer could have never owned a house but still had an immediate, intuitive understanding of how to handle the probate of the house. But how is a lawyer who confuses Twitter with Tinder supposed to understand that the bequest “all my family photos to John and those that John does not want to Jane,” might no longer refer to a dusty photo album but instead to a subfolder in an encrypted cloud storage account?

The Challenges And The Digital Assets Are Real

What people don’t understand is that everyday things in the digital world are overlooked assets. Digitally stored photographs and videos, Facebook accounts, airline points unpublished works of art. The list goes on.

As you can see from the above excerpts, George points to the speed at which the digital world is expanding while attorneys are scrambling to keep up. By the time many attorneys feel they have a grasp, things have changed again.

We have a full-time digital legal expert on staff (yes, he is a millennial) and everyone who works here goes to conferences and educational seminars on all things digital. In my firm, I am the legal authority on cryptocurrency. Not only are we keeping up, we are in many cases, leading the way in the understanding and protection of digital assets. If you would like to update your estate and asset protection plan to include digital assets, give us a call.