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When is social media contact criminal?

Stacked3This week's Daily Record column is entitled "When is social media contact criminal?"

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

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When is social media contact criminal?

The online world is simply an extension of the offline world. So it’s no surprise that people’s behavior on social media sites can result in criminal charges. But the complexity of the relationships and privacy settings on different social media sites can sometimes complicate the process of proving that the conduct that occurred was in fact criminal.

This very issue arose recently in a case out of Florida — O’Leary v. State, 109 So. 3d 874 (Fla. Dist. Ct. App. 2013).*

In this case, the defendant was accused of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Specifically, it was alleged that he posted on his personal Facebook “wall” statements — directed toward his relative and her partner — which constituted threats of serious death or bodily injury. The post was viewed by one of his cousins, who then informed his uncle of the post, who then in turn reported the post to the relative who had been threatened.

In reaching its decision, the court explained that controlling precedent established that the statute was violated when “1) a person writes or composes a threat to kill or do bodily injury; 2) the person sends or procures the sending of that communication to another person; and 3) the threat is to the recipient of the communication or a member of his family.”

The court then noted that a “communication” occurred since electronic communications were specifically enumerated in the statute. As such, the primary issue to be determined on appeal was whether the accused “sent” the message by virtue of his posting it on his personal Facebook page, an issue of first impression in Florida.

The accused argued that posting threats to his Facebook was the equivalent of simply “publishing” a message, which, in and of itself, does not constitute a violation of the statute since he took no other steps to ensure that the threat was seen by the people mentioned in the posting.

The court, however, disagreed, holding that to constitute “sending” under the statute, all that is required is that the message be posted where another can see it, whether it’s the person being threatened or a relative of said person.

The court explained that by posting the threats to his Facebook wall, the defendant intended for all of his “friends” to see it, including the cousin that he shared with the victim: “Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Facebook friends, including (his cousin).”

The court reached the right decision in this case, in part because it wisely analogized the online conduct to similar offline conduct. As I’ve often said, comparing online conduct to offline conduct leads to the correct analysis more often than not, since doing so makes the online conduct more understandable and accessible, despite its less familiar setting.

Online interaction may be a relatively new phenomenon, but when it comes right down to it, it’s no different than offline behavior. And in the case at hand, the medium didn’t change the message, it simply altered the channels of distribution.

* Brought to my attention by Rochester criminal defense attorney Gary Muldoon.

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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Ethics of VLOs and advertising in New York

Stacked3This week's Daily Record column is entitled "Ethics of VLOs and advertising in New York."

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

*****

The legal profession is in a state of flux. New technologies are changing the ways that lawyers advertise and deliver legal services. Internet-based tools, including social media and cloud computing, offer lawyers more choices than ever when it comes to running their practices and reaching potential clients.

As a result, innovation in the delivery of legal services, driven by rapid changes in technology, has increased greatly in recent years, with virtual law offices (VLOs) being a prime example. VLOs — where lawyers deliver legal services using an online portal — have become much more common, both because these types of practices are very flexible and cost-effective and because new cloud-based platforms have been introduced which are designed to support VLOs.

But as is always the case when lawyers innovate in the delivery of legal services, VLOs can trigger a host of ethical issues. Last month, the New York State Bar Association’s Committee on Professional Ethics addressed some of those issues in Opinion 964 (April 4).

In this opinion, the committee addressed two questions asked by an attorney who operated a virtual law practice out of her home and provided legal services and interacted with clients primarily using the Internet or by other electronic means. The inquiring attorney sough clarification regarding two different issues: 1) Whether she could use a commercial mailbox service address, in lieu of her home address, as her only office address listed in advertisements, and 2) Whether she could use a commercial mailbox service address as the only office address listed on business cards and letterhead.

The committee first addressed the definition of the term “principal law office address” as set forth in Rule 7.1(h), which provides, in relevant part, that “[a]ll advertisements shall include … the principal law office address … of the lawyer or law firm whose services are being offered.” The Committee reviewed past iterations of this rule, including the advertising rules adopted by the Appellate Divisions in 2007, which  changed the term “office address” as set forth in DR 2-101(k), the prior version of the rule, to “principal law office address” as it section now appears in DR 2-101(h), the current version of the rule.

The committee explained that it interpreted the fact that the term changed so little from one iteration of the rule to the next to mean that the Appellate Divisions’ intent continued to be that “all lawyer advertisements were to disclose the address of an office where the lawyers were present and available for contact, and where personal service or delivery of legal papers could be effected.”

Accordingly, the committee concluded that in order to avoid misleading the legal consumer, all advertising for legal services must include the street address of the lawyer’s principal office, even if that address is the lawyer’s home address, as was the case with the inquiring attorney. However, the committee also determined that so long as the attorney’s business cards and letterhead were not being used as advertising, but instead were being “used in the ordinary course of professional practice or social intercourse without primary intent to secure retention,” then a mail drop address could be listed as the sole address without mention of the attorney’s principal address — in this case, her home address.

I believe the committee’s conclusion in this case is misguided and fails to acknowledge the realities of a 21st century law practice. In fact, I criticized the requirement that a lawyer include the address of a home office in advertisements back in 2007 when the new advertising rules were enacted. As I explained in 2007, one way to avoid the risk of misleading the legal consumer regarding an attorney’s location while maintaining the privacy and safety of a lawyer with a home office is to require that attorney advertising list the county or city in which the attorney practices along with a mail drop address, but not the exact address of the home office.

This opinion surprised me, since more often than not, the New York State Bar is ahead of the curve when it comes to addressing the ethical issues triggered by new technologies. But in this case, the committee’s decision is surprisingly short-sighted and penalizes innovative lawyers seeking to serve legal clients more efficiently and cost effectively. This is an unfortunate decision that I don’t think will withstand the test of time.

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.


Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

 

Stacked3A special edition article that I recently wrote for the Daily Record column is entitled "Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys."

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

*****

Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

In 1996, I stepped into a courtroom as an assistant public defender for the very first time. I had no idea what I was doing. I had only recently been hired by the Monroe County Public Defender’s Office after interning there for a few months. I had some training from the attorney whose caseload I was taking over and I even had a mentor assigned to me. Her name was Jill Paperno and she was an extremely experienced felony attorney. She had a wealth of information to offer me, but truth be told, at the time, it was incredibly overwhelming.

So, like most public defenders, I learned on my feet. And, I became a very good criminal defense attorney over time — with a lot of help from my more experienced colleagues at the office. Whenever I ran into an issue or had a question, I would pop my head into someone’s office and got the answer I was seeking in no time.

But I’ve always thought that there had to be a better way. If only I could have harnessed all the information and collective experience of my colleagues and my mentor in one place. If only I’d had a manual that walked me through the process of representing someone accused of a crime, from the initial intake process through every stage of representation. If only someone with decades of criminal defense experience would take the time to sit down and write a step-by-step guide for new and less experienced attorneys with an interest in criminal defense. Wouldn’t that be nice?

Well sure enough, just 16 years after I first set foot in a courtroom, my wish came true: the “how-to” guide that I had envisioned for young criminal defense attorneys was finally published. It’s called “Representing the Accused: A Practical Guide to Criminal Defense” and coincidentally enough, was written by my former Public Defender mentor, Jill Paperno.

This book is everything I had imagined — and more. It provides young lawyers with advice on just about every aspect of every stage of representing a criminal defendant. From file organization and effective client communication to subpoenaing information and trying a case, this book covers all the bases.

Paperno starts with practice management basics — things you don’t even realize are important when you first start practicing law, in large part because most law schools completely fail to teach lawyers about the ins and outs of managing a case from start to finish. But as you quickly learn when your first criminal defense file grows from a single sheet of paper to hundreds, a large part of effective case management revolves around effective organization of your files.

Paperno tackles this incredibly important, albeit not exactly enthralling topic, at the beginning of the book explaining: “Although a career in criminal defense may be one of the most exciting ones you can select, there are certain kinds of excitement you want to avoid — the excitement of being unable to find an important document or a particular file, for example. Thus, one of the keys to a successful practice is developing the less exciting skill of organization.” Then over the next 18 pages, she provides detailed tips for organizing files gleaned over her 25-year career in criminal defense, ranging from document organization and management to file management and storage, both paper and digital.

From there, she carefully and concisely walks young attorneys through every aspect of a criminal case. In Chapter 3, she offers an assortment of general practice tips, including her warning that as a criminal defense attorney, you should develop a thick skin and prepare to be disliked by just about anyone you encounter in a case, including opposing counsel, judges and witnesses.

Another important tip —sometimes strange things are true. Paperno explains, “Sometimes a client will tell you something that seems completely ridiculous. But before you discount it, if it supports the defense, investigate whether it might be true. Repeatedly over the years, I have been told things I thought were absurd, but learned that there was truth to the claim and eventually used the information to support a defense.”

She then provides a broad overview of the life of a criminal case in Chapter 4 and in subsequent chapters addresses each and every stage of a criminal case, starting with the initial interview of your client in Chapter 5. From there, each chapter focuses on a specific stage of the case, starting with your client’s arrest and arraignment, moving on to pre-trial procedures, including choosing a defense theory, investigating the case, drafting motions, conducting hearings, and finally, at the end of the book, she devotes one chapter to trying cases and another to sentencing.

From discovery and subpoenas to cross-examination techniques and sentencing considerations, Paperno provides invaluable tips and advice from the trenches throughout the book, including this gem in Chapter 9 — a sound piece of advice that clearly comes straight from the mouth of a lifelong criminal defense attorney: “The prosecutor will be an important source of information in your case. But should you rely exclusively on information provided by the prosecutor? The short answer: a definite and resounding NO.”

If I had to come up with one criticism of this book, it would be that it glosses over the importance of, and the effects of, technology as it relates to both the physical management of files and in the investigation of a criminal case. Although these issues aren’t ignored, they are given no more than a passing nod, something I suspect has more to do with the fact that this book was a long time in the making and technology has advanced incredibly rapidly over the last few years.

It is difficult to keep pace with rapidly changing technologies, whether it’s mining social media for evidence or storing and managing client files in the cloud. So the lack of focus on the effects of technology in this book is understandable, but hopefully will be addressed more thoroughly in the second edition of this book. Another minor critique — an index in a subsequent edition would also be a nice addition.

These two small points aside, I highly recommend this book. It provides much-needed information for young lawyers and should, in my opinion, be a part of every law school curriculum. Paperno’s book is an incredible resource and one that I wish had been available to me when I started practicing criminal law back in 1996. The bottom line: this book is a must-have for all newly graduated and aspiring criminal defense attorneys.

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.

California lawyers can operate VLOs in the cloud

Stacked3This week's Daily Record column is entitled "California lawyers can operate VLOs in the cloud."

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

*****

California lawyers can operate VLOs in the cloud 

With the rapid advancements in technology and a continued ailing economy, it’s no surprise that enterprising lawyers are regularly finding new ways to serve their clients more efficiently and affordably. Of course, innovating in the delivery of legal services can sometimes trigger ethical issues and as a result, lawyers will often query their state and local ethics committees about the efficacy of their ideas.

As a result, in recent years, a number of state and local bar associations have issued opinions on the ethical issues related to using cloud computing services to store confidential client data.

One of the most recent opinions was issued by the State Bar of California Standing Committee on Professional Responsibility and Conduct. I wrote about the proposed opinion last year, and the committee has now released the final opinion, Formal Opinion No. 2012-184.

At issue was this question: “May an attorney maintain a virtual law office practice (VLO) and still comply with her ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”)?”

At the outset, the committee addressed the cloud computing technology that the inquiring attorney intended to use in her VLO. The committee noted that because of the “the wholly outsourced Internet-based nature of our hypothetical VLO, special considerations are implicated, which require specific due diligence on the part of our VLO practitioner.”

Next the committee explained that although the inquiring attorney was not required to become a technology expert in order to ensure that client confidentiality was maintained when outsourcing the storage of client data to the cloud computing provider, she nevertheless had an obligation to take reasonable steps to understand — or to consult with someone who understood — the basic technology provided by her cloud vendor.

Of note, the committee determined that the inquiring attorney “should determine that the VLO vendor selected by her employs policies and procedures that at a minimum equal what attorney herself would do on her own to comply with her duty of confidentiality.”

Issues that an attorney must consider when assessing the vendor’s services include: 1) the vendor’s credentials, 2) the steps taken by the vendor to secure data, 3) whether the data stays within certain geographical boundaries, 4) the extent to which the attorney is able to supervise the vendor, and 5) the terms of service set forth in the contract with the vendor.

The committee also stressed that the attorney had a continuing duty to periodically reassess the services provided by the vendor. And, importantly, the committee adopted the majority position and concluded that client consent to store confidential client data in the cloud under the set-up described by the inquiring attorney was unnecessary — as long as the attorney appropriately exercised due diligence in vetting the cloud vendor.

Next, the committee turned to the attorney’s duty of competency when delivering legal services solely via an online channel. The committee explained that in order to meet her ethical obligations, the inquiring attorney must: 1) take steps to ensure that her intake system obtains necessary information from the potential client sufficient to allow the attorney to determine whether she is able to competently provide the legal services requested, 2) take steps to ensure that the client truly understands the legal concepts involved and the advice given, 3) take steps to ensure that the client is reasonably informed about case-related developments, including confirming that the client is receiving information posted to the online portal, 4) ensure that the client has access to technology which will permit use of the online portal and that the client fully understands how the technology works, 5) ensure that she complies with her ethical obligations regarding the scope of her representation as enumerated in Rules 3-1110 and 3-700, and 6) take reasonable steps to ensure that she appropriately supervises subordinate attorneys, and non-attorney employees or agents.

Also important was the committee’s final conclusion — that “(t)he Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon attorneys practicing in a traditional non-VLO.”

In other words, ethical obligations to clients remain the same, regardless of whether legal services are delivered via a brick and mortar office or a VLO; the medium does not change the ethics.

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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