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Oregon weighs in on lawyers mining social media

Stacked3This week's Daily Record column is entitled "Oregon weighs in on lawyers mining social media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Oregon weighs in on lawyers mining social media

At this point, it’s indisputable: social media is here to stay. It is not the fad that many once believed it was. Instead, it is an Internet phenomenon that has transformed the ways that we connect, interact and communicate.

But for lawyers it’s more than that; the information shared on social media sites is a veritable treasure trove of evidence. For that reason, since 2010, ethics committees across the country have been called upon to opine on the ethics of lawyers mining social media sites for case-related information.

In most decisions, the pivotal issue is whether and how lawyers can ethically access non-public social media information. In other words, can lawyers access information that is only visible by individuals to whom the person being investigated has granted access? In most cases, the answer revolves around whether the person being investigated is represented by counsel and whether the attorney (or an agent) engaged in deception when attempting to access the data.

See, for example: New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).

In February, the Oregon State bar Ethics Committee joined the fray. In Op. 2013-189 (Feb 2013) (online: www.osbar.org/_docs/ethics/2013-189.pdf) the committee addressed the following questions: 1. May a lawyer review a person’s publicly available information on a social networking website? 2. May a lawyer, or an agent on behalf of the lawyer, request access to a person’s non-public information? 3. May a lawyer, or an agent on behalf of the lawyer, use a computer username or other alias that does not identify the lawyer when requesting permission from the account holder to view non-public information?

First, the committee concluded that an Oregon lawyer may access an unrepresented individual’s publicly available social media information since doing so is the equivalent of “reading a magazine article or purchasing a book written by an adversary.”

In considering the second question, the committee’s analysis revolved around whether the party was known to be represented by counsel. If the lawyer was unaware that the party was represented, making a “friend” request was permissible, as long as the lawyer responded honestly if the unrepresented party asked for additional information regarding the lawyer’s reason for making the request. However, no such request could be made of a person known to be represented by counsel without express permission from the party’s attorney.

Finally, the committee concluded that under Oregon’s “Covert Activity Exception” (Oregon Rules of Professional Conduct 8.4(b)) — which applies only when only when a lawyer believes in good faith believes there is a reasonable possibility that unlawful activity has occurred — a lawyer may “advise or supervise another’s deception to access a person’s nonpublic information on a social networking website.”

Oregon thus joins a number of other states in addressing this issue and clarifying the circumstances under which a lawyer may ethically mine social media for case-related information.

For those of you who happen to practice law in a jurisdiction that hasn’t yet addressed this issue, the best rule of thumb is to avoid deception when attempting to access non-public social media information. After all, honesty is always the best policy.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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ABA on judges using social media during campaigns

Stacked3This week's Daily Record column is entitled "ABA on judges using social media during campaigns."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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ABA on judges using social media during campaigns

In my prior column, I discussed the first half of the American Bar Association’s Formal Opinion 462, which was issued in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court, and during judicial campaigns. In this column, I’ll address the latter half of the opinion, which focuses on the ethics of judges using social media during election campaigns.

At the outset, the committee reviewed the applicable sections of Canon 4 of the Model Code, which cover judges’ conduct during judicial campaigns. The committee noted that judges and judicial candidates must be free, or appear to be free from political influence and pressure. But, the committee acknowledged that the code does not address, nor does it restrict, judges or their campaigns from using a particular method of communication to reach voters.

As such, judicial campaigns have moved fully into the 21st century and oftentimes take advantage of the many benefits offered by using social media sites during election campaigns. The committee explained that “(i)n jurisdictions where judges are elected, (social media) has become a campaign tool to raise campaign funds and to provide information about the candidate … (and) may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”

However, the committee cautioned that social media must be used with care given the limitations imposed by Canon 4, which prohibit judges and judicial candidates from publicly endorsing or opposing another candidate for political office.

The committee explained that because interaction on some social media sites can result in a “passive” endorsement of another candidate, it is important to fully understand the implications of interacting thereon: “Judges should be aware that clicking such buttons on others’ political campaign ESM sites could be perceived as a violation of judicial ethics rules that prohibit judges from publicly endorsing or opposing another candidate for any public office. … On the other hand, it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s ESM political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page.”

The committee then set forth suggested guidelines and recommendations for online interaction, emphasizing the need to have a complete understanding of the workings of each social network in order to avoid the public appearance of impropriety: “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public. … This may require managing privacy settings on ESM sites by restricting the circle of those having access to the judge’s ESM page, limiting the ability of some connections to see others, limiting who can see the contact list, or blocking a connection altogether.”

So, the good news is that the ABA gave the green light to judges using social media sites and other Web-based forums to forward their election campaigns. But, importantly, the committee stressed the need to fully understand both the ethical implications of doing so and the mechanisms and privacy settings of each platform.

 

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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On the Boston Tragedy: And for what?

English: Flag proudly flying on the summit of ...(Photo credit: Wikipedia)

My heart goes out to the Boston victims and their loved ones. Such a horrible, pointless tragedy. 

It was one of many on our soil in recent years--some were terrorism and others gun violence.

My heart aches. There have been too many senseless tragedies as of late. Too much sorrow. Our country is suffering from the weight of these collective losses--both due to the tremendous sadness and the gradual eradication of our liberties. 

And for what?

Our digital communications are fair game and the government is collecting all of our digital data, without just cause or a warrant. (See "Who's Watching the NSA Watchers" - NYT).

We're undergoing near-strip searches at airports. We can't enter places where large public gatherings occur without having our bags and persons searched. Surveillance cameras are everywhere.

And for what?

With this latest tragedy--there allegedly were no "credible reports" of threats beforehand. And now CNN is reporting that surveillance videos have captured both the bombing itself and possibly the bomb-carrying backpacks as they were left behind. All of this after the fact.

And for what?

And now we'll seek vengeance--which we no doubt deserve. We'll catch the bastards that did this. But, what then--after we obtain "justice" and revenge? 

Will we subsequently lose even more rights and constitutionally guaranteed liberties--all in the name of "security"? Will it be worth it? Will it do anything at all to prevent these horrible, heart wrenching national tragedies?

I certainly don't have the answers. But I, like my fellow citizens, am grieving today--and hugging my family closer tonight. Because that's really the only thing you can do on days like today. 

Peace. Solidarity. Liberty. Hope.

And for what?


ABA opines on judges using social media

Stacked3This week's Daily Record column is entitled "ABA opines on judges using social media."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

*****

ABA opines on judges using social media

The majority of jurisdictions that have addressed the issue of judges having social media connections have concluded that it is generally permissible for judges to become online “friends” with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules. (See, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119).

However, a few contrary opinions have been issued: See, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)

And now, the debate continues, with the issuance of Formal Opinion 462 by the American Bar Association in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court and during judicial campaigns.

In this article I’ll address the former situation and in my next article, I’ll discuss the ABA’s decision regarding the use of social media during judicial campaigns.

First, in assessing the issue of whether judges may use social media outside of judicial campaigns, the ABA’s Standing Committee on Ethics and Professional Responsibility wisely acknowledged that online interaction is simply an extension of offline interaction and thus judges’ use of social media (ESM) does more good than harm: “Social interactions of all kinds, including ESM, can be beneficial to judges to prevent them from being thought of as isolated or out of touch.”

Next, the committee discussed the need to evaluate the nature of judges’ social media connections and stressed the importance of context when doing so: “A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court … In this regard, context is significant designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”

The committee then described the process that judges must go through when evaluating the existence of known social media connections with parties appearing before them: “Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge … (t)he judge should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally.”

Importantly, the committee noted that judges do not have a proactive duty to research their social media contacts in order to determine if online relationships exist: “(N)othing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”

All in all, this portion of the opinion was very well thought out and the committee did a good job of comprehending and analyzing the nature of social media relationships. The guidelines established are useful and will go far in aiding judges in understanding and evaluating their obligations to disclose social media connections with those who appear before them.

As for the use of social media by judges during judicial campaigns, you’ll have to wait until my next article. But sit tight. It’ll be worth it. I suspect you’ll find that article to be just as interesting and enlightening as this one.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.

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