Previous month:
January 2016
Next month:
March 2016

Another Judge Allows Service Via Facebook

Stacked3This week's Daily Record column is entitled "Another Judge Allows Service Via Facebook."  My past Daily Record articles can be accessed here.

*****

Another Judge Allows Service Via Facebook

Social media has permeated all aspects of our lives. Whether it’s news breaking on Twitter, professionals connecting on LinkedIn, people sharing momentous occasions on Facebook, or other simply sharing their latest meal on Instagram, it’s hard to escape the effects of social media. That’s why it’s not surprising that social media is increasingly cropping up in the practice of law, whether it’s mining social media for evidence in litigation, researching jurors online, or judges permitting the service of process to occur via social media sites.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia and a New York family court judge. Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case.

Most recently, Cheryl L. Pollak, United States Magistrate Judge for the Eastern District of New York, considered the issue of whether a plaintiff could serve process upon the defendant via Facebook and email. In Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), the plaintiff asserted that service by more traditional methods would be impracticable since he’d been unable to locate the plaintiff “despite sending process servers to both of defendant's home addresses, speaking with defendant's sister at one of the home addresses about defendant’s whereabouts, and hiring a private investigator in an effort to locate the defendant… Moreover, after searching various computer databases and social media platforms, petitioner contends that defendant has changed her name several times.”

The Court agreed that serving the defendant via more traditional methods was indeed impracticable and that other alternatives should be considered. In reaching its decision as to whether service via social media might be an option, the Court noted that in recent years, the attitude toward the service of process via social media had changed: “Courts have acknowledged that service by Facebook is a relatively “novel concept," and "that it is conceivable that defendants will not in fact receive notice by this means;" however, courts must remain open to ‘considering requests to authorize service via technological means of then-recent vintage.’"

Next the Court moved on to the plaintiff’s proposed method of service and concluded that “petitioner's proposed method of service by email and Facebook alone are not reasonably calculated to provide notice of the action to defendant” since he had failed to provide sufficient evidence that the email address he intended to use did, in fact, belong to the defendant. Likewise, he had failed to establish that the Facebook account he believed belonged to the defendant was actually maintained by her. However, the court noted that the defendant had been able to successfully reach the defendant in the past using U.S. mail.

Accordingly, the Court granted the defendant’s motion for an alternate method of service via Facebook, but also required him to attempt to effect service using other methods as well: “Plaintiff is Ordered to attempt service of process of the summons and petition by all of the following methods: (1) by sending copies of the summons and petition by certified mail, return receipt to defendant's last known address and to defendant's sister at this address; (2) by emailing a copy of the summons and petition to the email address tatashaw@gmail.com; and (3) by sending a Facebook message to Tata Shaw, which is linked to the Tata Shaw Facebook page, that contains a copy of the summons and petition.”

Another court, another day. No longer is social media a foreign concept or a fad to be discounted. Instead, it’s simply an everyday part of 21st century life; ignore it at your peril and to the detriment of your clients.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.


Colorado Bar on connecting with judges and researching jurors online

Stacked3This week's Daily Record column is entitled "Colorado Bar on connecting with judges and researching jurors online (Part 1)."  My past Daily Record articles can be accessed here.

***

Colorado on connecting with judges and researching jurors online

Last week I covered the first part of an opinion issued by the Colorado Bar Association Ethics Committee, Formal Opinion 127. I discussed the Committee’s conclusions regarding lawyers mining social media for evidence and then promised to address the second half of the opinion this week. So, today I’ll be covering the portion of the opinion where the Committee discusses whether it’s ethical for lawyers to connect with or research jurors and judges online.

At the outset, the Committee explained that online communications with jurors are no different than offline communications: “Essentially, communications between a lawyer and a juror through social media are no different than face-to-face communications or telephonic communications between a lawyer and a juror.”

Next the Committee opined that lawyers may view jurors’ public social media profiles without triggering any ethical issues, even in cases where the social media platform notifies the juror that the lawyer accessed his or her public profile. The Committee noted that it agreed with the American Bar Association’s take on this issue, since “in such circumstances, the lawyer is not communicating with the juror. Rather, the social media service is communicating with the juror based on a technical feature of the particular social media, consistent with agreements between the provider and the subscriber.”

The Committee likewise concluded that the same rationale applies to judges’ public social media profiles. Accordingly, lawyers may view the public profiles of judges before whom they have a case pending: “Judges who maintain a presence on social media should expect that attorneys and parties appearing before them will view the public portion of the judge’s profile. Similarly, lawyers should advise their clients to expect opposing counsel or their agents to view the public portions of their social media profiles.”

Next the Committee turned to issue of whether lawyers or their agents my request to view restricted portions of the social media profiles of jurors. The Committee concluded that doing so was impermissible: “Without express authorization from the court, any form of communication with a prospective or sitting juror during the course of a legal proceeding would be an improper ex parte communication, whether a lawyer or someone else acting on the lawyer’s behalf initiates the communication.”

Finally, the Committee addressed the issue of whether lawyers may request to connect with judges presiding over a case in which the lawyer Is Involved as counsel or as a party. This type of online behavior was also determined to be impermissible: “(Lawyers may participate) on social networking sites with judges…However, Colo. RPC 3.5 prohibits a lawyer from actively communicating ex parte with a judge during the period the lawyer is appearing as counsel or as a party before a judge, concerning or relating to the matter before that judge…A lawyer generally should not send a "friend request" to a judge while the judge is presiding over a case in which the lawyer is appearing as counsel or a party… At least one commentator has recommended that to eliminate any risks and to comply with Rule 3.5, a lawyer and judge who know they are part of the same restricted social network, and who learn that the lawyer is to appear in a matter before the judge, should "un-friend" one another.. While the Committee does not believe such steps are mandated, lawyers must be cautious about what they post on any social media network of which they know a judge is a member while they have legal matters pending before that judge.”

All in all this was a well-reasoned opinion that tackled a host of important ethical issues faced by 21st century lawyers. It’s well worth a read, even if you don’t practice law in Colorado, since it provides lots of background information on social media and sound conclusions regarding the ethics of lawyers interacting online with witnesses, parties, jurors, and judges.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.


Colorado Weighs In On Researching Social Media For Evidence (Part 1)

Stacked3This week's Daily Record column is entitled "Colorado Weighs In On Researching Social Media For Evidence (Part 1)."  My past Daily Record articles can be accessed here.

***

Colorado Weighs In On Researching Social Media For Evidence (Part 1)

In November 2015, the Colorado Bar Association Ethics Committee issued an in depth and well-reasoned opinion covering many of the ethical issues lawyers encounter when trying to use social media to investigate their clients’ cases. Because Formal Opinion 127 addresses so many different topics, I’ll cover the Committee’s conclusions regarding how to ethically mine social media for evidence in this article. Next week I’ll focus on the Committee’s analysis regarding how to ethically connect with or research jurors and judges online.

At the outset of this opinion, the Committee wisely noted that online investigation is quite similar to research conducted offline: “In most respects, conducting investigations or discovery through social media is no different than performing these tasks by any other means.”

Next, the Committee tackled the ethical issues encountered when lawyers or their agents view information on social media that is publicly available and is not behind a privacy wall. The Committee agreed with the conclusion reached by most other jurisdictions and determined that there is no ethical bar to viewing information that is publicly available when mining social media for evidence: “Bar association ethics committees that have addressed this issue generally agree that lawyers may view any information publicly posted by a witness, or included on the public portion of that person’s social media profile. Such information is treated no differently from any other publicly available information or public record. The Committee believes that the same rule applies to the public portion of a social media profile or posting established by any…individual.”

The Committee then moved on to the ethics of attempting to access online information found behind a privacy wall. First the Committee explained that lawyers and their agents may not engage in deception to access restricted information. “Engaging in any form of deception to gain access to the restricted portion of a person’s social media profile violates Colo. RPC 8.4(c), and also violates Colo. RPC 4.1 if the lawyer’s actions occur during the representation of a client…Lawyers also may not circumvent the prohibition against seeking information through social media by means of deception by delegating investigative tasks to another person.”

Next the Committee explained that if a person is known to be represented by counsel, it is impermissible to request access to restricted online information without obtaining consent from the attorney. But, the ethical obligations of lawyers who attempt to view the restricted information of a person who is not represented by counsel, whether a party or witness, are different.

The Committee rejected the New York City Bar’s minority view that lawyers in this situation need not disclose anything more than their name and concluded that lawyers and their agents must provide information sufficient to allow the unrepresented person to make an informed decision about granting access to social media information behind a privacy wall. The Committee elaborated: “This means (1) providing the name of the lawyer requesting access or for whom the requesting person is acting as an agent, (2) disclosing that the lawyer is acting on behalf of a client, and (3) disclosing the general nature of the matter in connection with which the lawyer is seeking information. The lawyer also must identify the client if disclosure is necessary to avoid a misunderstanding regarding the lawyer’s role…and may have to explain that his or her client has interests opposed to those of the unrepresented party.”

Finally, the Committee considered the ethical obligations attorneys face when seeking to obtain information from another person who already has access to restricted portions of an individual’s social media account. The Committee explained that: “Under no circumstances may the lawyer request that the third person make requests for new or additional information from a party or witness if the lawyer would be legally or ethically prohibited from requesting or obtaining it directly. Moreover, the lawyer may not request the third person to engage in deceptive conduct to obtain access to new or additional information from a party or witness through social media.”

As I mentioned above, the Committee also addressed the issues lawyers encounter when attempting to connect with or research judges and jurors online. Check back next week to learn what conclusions the Committee reached regarding those issues.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.