social media

New York Court of Appeals on discoverability of Facebook messages

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New York Court of Appeals on discoverability of Facebook messages

For litigators, social media platforms have increasingly become an invaluable source of evidence. So it’s not surprising that discovery disputes often arise regarding the scope of requests for social media-related information.

Last month, one of those discovery disputes reached the New York Court of Appeals in a negligence case relating to injuries that the plaintiff suffered after a fall from a horse. In Forman v. Henkin, the plaintiff alleged that the injuries were caused by the negligence of the defendant and owner of the horse. During the course of discovery, the defendant sought access to the plaintiff’s entire Facebook account - including information that was located behind the privacy wall that could be seen only be the plaintiff’s “friends” and, presumably, private Facebook messages as well - after she’d made reference to the Facebook data during a deposition. At issue was whether the information behind the Facebook privacy wall was relevant to the issues at hand and thus discoverable.

At the outset, the Court wisely acknowledged that that the online was no different than the offline when it came to the application of the standards governing discovery requests: “While Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Next, the Court clarified that the appropriate determination to be made when a party seeks evidence found on social media platforms is whether the information is relevant to the issues in the case. The court explained, “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information…In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”

The Court cautioned, however, that a discovery request for social media-related information does not trigger mandatory disclosure of all posts. The Court then turned to an offline equivalent to make its point: “Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information.”

The Court then explained that a 2-prong inquiry should be made by courts considering motions relating to discovery requests for social media data: “Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials…Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.”

Unlike some other New York courts that have addressed these types of issues, the court did not differentiate between social media posts behind a privacy wall that are viewable by all of the person’s “friends” versus private messages sent only to one person. Instead, the court put the onus on the plaintiff to take measures to prevent disclosure of “sensitive or embarrassing” information explaining that “the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.”

Overall, this was an instructive opinion that provides necessary guidance to New York litigators seeking to use social media evidence in their cases. That being said, I do wish that a distinction had been made regarding the different types of posts on Facebook, rather than grouping all non-public posts made behind the privacy wall together. Private messages between two people are, as one Appellate Court judge has noted in the past, more akin to diary entries and thus may not be discoverable absent a greater showing of relevancy. Nevertheless, the highest court in New York has spoken. New York litigators, take note.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


ABA on Client Confidentiality in the 21st Century

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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ABA on Client Confidentiality in the 21st Century

These days, news is shared in many ways, with online news outlets and social media sites contributing to the rapid - and sometimes viral - dissemination of information. Not surprisingly, details distributed online can sometimes trigger client confidentiality issues. For that reason, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“Committee”) recently addressed the duty of client confidentiality owed to former clients when information about a client becomes “generally known” after being shared online and through other news channels.

In Opinion 479, the Committee considered an exception to the client confidentiality relating to former clients. Specifically the Committee examined the exception found in Model Rule 1.9(c)(1) that permits lawyers to use information that is “generally known” to a former client’s disadvantage despite lack of consent from the former client.

As the Committee explained, Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation ‘to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known.”

The primary issue considered in this opinion revolved around defining the concept “generally known.” At the outset, the Committee explained that there was a distinction between “publicly available” and “generally known”: “Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes.”

Next, the Committee acknowledged that modern technology has made its mark on this concept, explaining that information “may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media.”

Next the Committee provided insight into how information becomes generally known in the context of a client’s chosen career: “(I)nformation should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public.”

The Committee explained that in that context, knowledge of the matter by the general public is irrelevant. The Committee offered the insurance industry as an example and indicated that what truly mattered was whether the information had been broadly disseminated in that industry: “For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.”

The Committee then summarized its analysis and conclusions as follows: “(I)nformation is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade.”

This opinion offers much-needed clarification for lawyers regarding client confidentiality issues in the digital age. The times are undoubtedly changing as the online world speeds up and amplifies the dissemination of information. Certainly the end result is that the internet may muddy the waters a bit when it comes to lawyers’ ethical obligations. But as this opinion shows, despite the rapid pace of change, lawyers’ ethical obligations nevertheless remain constant, whether applied online or offline.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


Lawyers and Social Media in 2017

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Social media has been around for more than a decade. At first lawyers ignored social media, but over time, as it infiltrated our culture, they sat up and took notice. Today, more lawyers than ever use social media. Some use it for networking and marketing, while others interact online to showcase their expertise or gather valuable evidence and information to support their practices, among other reasons.

Regardless of how or why lawyers use social media, the statistics from the 2017 American Bar Association’s Legal Technology Survey Report show that, generally speaking, the number of lawyers using social media has increased year over year, which is in line with the increase in the use of social media by the general population as a whole.

For starters, the use of blogs by law firms is increasing, with large firms leading the way. 71% of firms with 500 or more attorneys maintain at least one blog (compared with 60% in 2016, 58% in 2015, and 62% in 2014), as do 71% of firms with 100-499 attorneys (compared with 52% in 2016, 53% in 2015, and 47% in 2014). Mid-sized firms with 10-49 attorneys were next at 38%, followed by small firms with 2-9 lawyers at 25%, and solo law firms at 15%. The practice areas within firms that were most likely to maintain a blog were employment and labor law at 33%, personal injury law at 32%, and litigation at 31%.

When it came to lawyers who personally maintained a blog for professional reasons, however, the numbers were flipped. Solo lawyers led the way: 15% of solo lawyers blogged, followed by 11% of lawyers from firms of 2-9 lawyers, 11% of lawyers from firms of 100 or more attorneys, and 10% of lawyers from firms of 10-49 attorneys. Of those lawyers, 43% have had a client retain their services because of their blogging efforts.

Moving on to social media, 77% of lawyers surveyed indicated that their firms maintained a social media presence. And, 81% of lawyers reported that they personally used social media for professional purposes.
Interestingly, the age group of lawyers most likely to maintain a personal presence on social media was 40-49 years olds (93%), followed by 40 and under (90%), 50-59 (86%), and 60 or older (73%). Lawyers with the following practice areas were most likely to personally use social media: employment/labor (89%), personal injury (84%), litigation (84%), commercial law (82%), and contracts (81%).

The most popular social network used by lawyers for professional purposes was LinkedIn, with 90% of lawyers reporting that they maintained a profile. Next was Facebook at 40% and then Twitter at 26%. Two lawyer directories were included in the Report, Martindale and Avvo, with only 21% of lawyers reporting that they used each platform.

Of those lawyers who maintained a personal presence on social media, 27% have had a client retain their legal services directly or via referral as a result of their use of social media. Solo and small firms lawyers were the most likely to be retained due to their social media presence. Lawyers in firms of 2-9 lawyers came in first in this regard at 33%, followed by solo lawyers (32%), then lawyers from firms of 10-49 lawyers (22%), and finally lawyers from firms of 100 or more lawyers (18%).

All in all, this year’s report provided lots of interesting data about lawyers’ social media use. Whether you’re a solo lawyer or are part of a much larger law firm, social media can be a valuable tool. My hope is that some of the statistics above will help guide you in making the best use of social networking. The trick is to use social media wisely, and ensure that the time you spend interacting online is both efficient and effective.

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


Florida Court on judges and Facebook friends

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Florida Court on judges and Facebook friends

Courts and ethics committees have been grappling with the issue of judges using social media for years now. At first, the general consensus seemed to be that judges should avoid social media at all costs since any online connections compromised the judge’s appearance of impartiality.

For example in 2012, Florida’s Fourth District Court of Appeal reached this very conclusion in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

In my Daily Record article about this case, I disagreed with this conclusion, explaining that: “Judges are human beings with lives outside the courtroom. They have preexisting friendships with attorney colleagues that didn’t cease to end when they became judges. To issue ethics decisions that prevent judges from interacting on social media with the very same lawyers with whom they regularly interact in public is nothing short of ridiculous. Let’s hope Florida remains in the minority on this issue.”

Fortunately, as time advances and social media use permeates our culture, opinions on judges using social media are likewise changing with the times. Case in point: the an opinion recently issued by the Third District Court of Appeal in Florida, which expressly conflicted with the the Fourth District Court of Appeal’s determination in Domville.

At issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 was whether the judge assigned to the matter should be disqualified since he was Facebook “friends” with counsel for the defendant.

In reaching its determination on the issue, the Court noted that a friendship between a judge and an attorney is typically insufficient, in and of itself, to present an inherent conflict of interest: “(W)e note as a general matter, that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge.”

The Court also wisely acknowledged that the rate at which social media and its many platforms has changed over the years necessarily affected its analysis in the case at hand: “(E)lectronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”

Next, the Court turned to the issue of assessing the nature of a Facebook friendship in the present day and explained that a connection on Facebook does not necessarily indicate a close personal connection: “A random name drawn from a list of Facebook ‘friends’ probably belongs to…(a) casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a ‘friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.“

As such, the Court concluded that it was departing from the holding in Domville and was declining to disqualify the judge in the case at hand: “Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, we hold that the mere fact
that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’ On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”

It’s heartening to see courts and ethics committees changing with the times and issuing opinions that reflect the current state of social media and technology. Our society is being transformed by the Internet and technology at a rate never before seen. It’s not always easy to keep up, so kudos to Florida’s Third District Court of Appeal for setting a great example and keeping pace.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.


U.S. Supreme Court on First Amendment rights and social media

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Last month the United States Supreme Court weighed in on the intersection of the First Amendment with social media in Packinham v. North Carolina, No. 15–1194

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.

 


New Jersey judge permits service via Facebook

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New Jersey judge permits service via Facebook

If you’re a litigator, then I can only assume that by now you fully understand how social media platforms impact your practice. At this point in time, one way or another, you’ve undoubtedly encountered social media issues while representing your clients. Whether it’s crimes being committed using social media platforms, mining social media for evidence, researching jurors on social media, or using social media as a method for service of process, social media crops up in a multitude of ways during the litigation process.

This trend began in approximately 2010, when social media use began to appear in criminal cases as the basis for criminal acts. From there it took a few years before lawyers began to affirmatively use social media on their client’s behalf during litigation matters. I’ve been tracking those trends for some time now, including the use of social media platforms for service of process.

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 (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B). Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)).

Last year, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

The issue was addressed even more recently in Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via social media - specifically using Facebook.

In this case, the plaintiffs filed an order to show cause and a verified complaint seeking to restrain the defendant, the purported biological father of their adopted son, from contacting them and/or their son on social media. According to the complaint, the defendant had reached out to their son, his sister, and his adoptive father on Facebook and Instagram, claiming to be his biological father.

After unsuccessfully attempting to serve the defendant via more traditional methods, including regular and certified mail, the plaintiffs sought permission to serve the defendant using Facebook. In reaching its decision, the Court applied the 3-prong test established in Baidoo (above) and determined that the Facebook page in question was the defendant’s, that it appeared to be regularly updated, and due to the unique nature of this case, no other supplemental service method was necessary. Accordingly, the Court concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

Following the Court’s decision, service of process using Facebook was thus accomplished and the defendant soon replied, sending a private message to the plaintiffs counsel on Facebook indicating that he’d received it, stating “I’ll see you in court.” He subsequently appeared via telephone on the return date of the matter.

Another court, another day. Service of process using social media platforms is becoming increasingly common, which is not unexpected. After all, the practice of law can only resist societal changes for so long. Social media is a force to be reckoned with and it’s not going away. Rather than turn a blind eye to it, learn about it and use it to the benefit of your clients. After all, knowledge is power and you have an obligation to provide zealous representation to your clients - something that is impossible to do if you’re not adequately armed with the tools needed to do so.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.

 

 


NYSBA issues updated social media guidelines for lawyers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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NYSBA issues updated social media guidelines for lawyers

I’ve always believed that social media use by lawyers should be treated no differently than any other type of communication by lawyers. After all, online interactions are simply an extension of offline interactions, and the medium doesn’t change the message. For that reason, it has pained me to see so many ethics committees issuing so many opinions over the years on the many perceived nuances of online communication by lawyers.

Many of these opinions are simply unnecessary and constitute knee jerk reactions to a new way of interacting. And many are based on faulty reasoning grounded in the assumption that online communications are somehow different than those occurring offline and thus warrant the application of new, more stringent standards. Others, however, necessarily address issues that are unique to online communications. One good example is opinions that address the issue of whether the passive notifications received by LinkedIn users (who also happen to be jurors) which indicate that a lawyer has viewed their profile constitute impermissible juror contact.

Regardless of whether I agree with the sheer volume of opinions or their merit, the end result is that lawyers are left to their own devices when it comes to reviewing the many opinions and deciphering which types of on online interactions are ethical. Navigating the maze of ethics opinions can be a difficult and overwhelming task and for that reason, some attorneys simply choose to forego using social media altogether.

That’s where the recently updated “Social Media Ethics Guidelines,” issued by the the Commercial and Federal Litigation Section of the New York State Bar Association, come in.


These guidelines were first released in 2014 with the intent to provide lawyers with guidance in navigating the many ethical issues encountered when using social media in a professional context. The Guidelines were revised in 2015 and, then, just 2 weeks ago, a newly updated version of the Guidelines was released.

Some of the more notable revisions include:

  • Attorney Competence (§ 1.A) reflects that 27 states have adopted some duty of technical competence.
  • Maintaining Client Confidences (§ 5.E) offers information on how an attorney can respond to online reviews as well as services that offer to import contacts.
  • Positional Conflicts (§2.E) is new and discusses DC Bar Ethics Opinion 370 regarding whether social media posts adverse to a client’s interest may present a conflict of interest. The revised appendix describes social media terminology and some of the more popular social media platforms.
  • The newly added social media definitions are particularly useful, and I have to admit that although I’ve always considered myself to be more social media-savvy than most lawyers (having written a book on lawyers using social media), even I learned a few things after reading through the definitions.

So, if you haven’t yet read the updated Guidelines, make sure to set aside some time in order to do so. They provide a very useful, extensive round up of how ethics committees across the country have approached lawyers using social media. The Guidelines are a great resource that will serve as a handy reference guide for your professional online social media activities.

 

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. 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 can be reached at niki@mycase.com.

 


Judges weigh in on researching jurors online

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Judges Weigh In On Researching Jurors Online

Now that social media is simply part of our day-to-day lives, it’s no surprise that it’s also appearing in legal cases. Lawyers routinely seek to access social media data during the discovery phase of trial, mine social media for evidence to use during trial, and research jurors prior to voir dire.

In the past I’ve covered the various ethics opinions regarding lawyers mining social media for evidence and researching jurors using social media. New York, D.C., Pennsylvania, Oregon, and quite a few other jurisdictions have addressed these issues. But it’s not just ethics committees that are weighing in on social media use in litigation. Many Judges are throwing their hats in the ring as well and are establishing procedures for their courtrooms that address the use of social media evidence at trial.

Oftentimes judges recognize that online research alone isn’t necessarily problematic. For example, in 2014 it was reported in a Tampa Bay Times article that in a ruling issued by Circuit Judge Anthony Rondolino, he indicated that allowing parties to research jurors online and then share any relevant information obtained with the court could help to avoid mistrials. His rationale was based on the premise that jurors don’t always disclose relevant information during voir dire, although the failure to do so isn’t necessarily intentional and can sometimes arise from a failure to understand the questions being posed to them.

Other judges are more wary of online research when it comes to jurors, such as U.S. District Judge Rodney Gilstrap of the Eastern District of Texas. Earlier this year he issued a standing order that prohibits “all attorneys, parties, and their respective employees and agents, including jury consultants rom contacting jurors through social media.” However, simply researching jurors by viewing public profiles was permitted, even where jurors might receive passive notifications of the viewing of their profile: “(T)hey are not prohibited from conducting or causing another to conduct any
type of online investigation merely because a juror or potential juror may become aware that his or her ESM is being reviewed. For example, lawyers are not prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”

And last, but not least, in 20116, the U.S. District Court for the Northern District of New York, adopted a local rule in early 2016 that allows lawyers and their agents to research jurors using social media so long as the information viewed is publicly accessible. However, the rule provides that passive notifications indicating that a specific person has viewed a juror’s social media profile are not permitted. Importantly, the rule provides that “If an attorney becomes aware of a juror’s posting on the internet about the case in which she or he is serving, the attorney shall report the issue to the court.”

So, the times they are indeed a’changin’, my friends. Social media is here to stay and in many cases, that’s not a bad thing. It can be a valuable tool for litigation purposes, as long as you are aware of the applicable ethical guidelines and rules of court. So use social media to your clients’ advantage, but make sure to use it wisely.

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.


Lawyers and Social Media in 2017

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Lawyers and Social Media in 2017


Until recently, lawyers have been reticent to use social media, insisting that it was a passing fad. However, because social media has increasingly cropped up as important evidence in cases, lawyers’ attitudes have begun to change, as they realize that it can be a valuable tool, both in litigation and in marketing.

That’s why in 2017, more lawyers and law firms are using social media than ever before. In fact, according to the American Bar Association’s most recent Legal Technology Survey Report, 74% of law firms now maintain a presence on a social network and 76% of lawyers report that they personally use one or more social media networks for professional purposes.

According to the Report, lawyers use social media for a number of reasons, ranging from career development/networking (73%) and client development (51%), to education/current awareness (35%) and case investigation (21%).

Lawyers under the age of 40 are the most likely to use social media at 88%. Next in line are lawyers between the ages of 40-49 year old at 85%, then 50-59 year old lawyers at 81%, and then lawyers 60 years old or older at 64%.
For some lawyers, social media is an effective marketing tool, with 25% of lawyers reporting that they’ve had a client retain them because of their social media activity, up from 19% in 2013. Solo attorneys were the most likely to report this at 34%, while attorneys from large firms (100 or more lawyers) were the least likely at 16%.

Blogging is also an important tool for lawyers with 26% of lawyers reporting that their law firm maintains a legal blog. For those lawyers who personally maintain a legal blog, 42% have had a client retain their legal services directly or via referral as a result of their blogging.

The most popular social network for lawyers is LinkedIn. Presumably lawyers are more comfortable with LinkedIn compared to other social networks due to its focus on professional issues rather than social. According to the report, a whopping 91% of firms of 100 or more attorneys have a presence in LinkedIn, followed by 85% of solos, 76% of mid-sized firms with 10-49 lawyers, and 63% of smaller firms with 2-9 lawyers.

Nearly 80% of all individual lawyers have a profile on Linkedin as well, with solos and lawyers from mid-sized firms leading the way, with 99% of lawyers from firms with 10-49 lawyers using LinkedIn and 91% of solos. In third place were lawyers from firms of 2-9 lawyers at 85%.
The most active lawyers on Facebook are solos at 48%, followed by 41% of lawyers from small firms (2-9 attorneys). Mid-sized firms with 10-49 lawyers were next at 22%, with lawyers at firms with 100 or more lawyers coming in last at 16%.

Facebook is also a popular social network for lawyers, with many lawyers reporting that they use it for personal reasons only, including 89% of solos, 89% of lawyers from small firms, 82% of attorneys from mid-sized firms, and 80% from large firms of 100 or more. The most active lawyers on Facebook for professional purposes are solos at 48%, followed by 41% of lawyers from small firms (2-9 attorneys). Mid-sized firms with 10-49 lawyers were next at 22%, with lawyers at firms with 100 or more lawyers came in last at 16%.

The least popular network amongst lawyers isTwitter, with only 21% of lawyers reporting that their firms maintain a presence on Twitter. And, only 25% of respondents report that they personally maintain a presence on Twitter. When it comes to lawyers maintaining a personal presence on Twitter, lawyers from mid-sized firms lead the way with 26% maintaining a Twitter account, followed by 25% of solos, 25% of large firm lawyers, and 24% of small firm lawyers.

So that’s how your colleagues are using social media in 2017. How does your social media use compare?

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


D.C. Bar on mining social media for evidence and more

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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D.C. Bar on mining social media for evidence and more

Last month I wrote about D.C. Bar Opinion 370, which addresses the ethics of lawyers using social media for marketing purposes, among other things. The D.C. Bar also simultaneously issued a separate opinion on a related matter: lawyers using social media in providing legal services.

In Opinion 371, the DC Bar Ethics Committee addressed a number of interesting issues including two of my favorite topics, the ethics of mining social media for evidence and using social media to research jurors.

At the outset, the Committee wisely acknowledged that lawyers who ignore technology do so at their peril: “(C)ompetent representation always requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to carry out the representation. Because of society's embrace of technology, a lawyer's ignorance or disregard of it, including social media, presents a risk of ethical misconduct.”

The Committee specifically addressed the obligation of lawyers to acquire knowledge about the workings of social media, opining that lawyers who do not understand social media are failing to provide adequate legal representation: “Because the practice of law involves use or potential use of social media in many ways, competent representation under Rule 1.1[3] requires a lawyer to understand how social media work and how they can be used to represent a client zealously and diligently[4] under Rule 1.3.[5] Recognizing the pervasive use of social media in modern society, lawyers must at least consider whether and how social media may benefit or harm client matters in a variety of circumstances.”

Next the Committee turned to using social media to research information about parties to a litigation matter, where said data is not behind a privacy wall and is thus publicly available. The Committee agreed with the other ethics committees that have addressed this topic, concluding that it is ethically permissible to do so: “Lawyers can and do look at the public social media postings of their opponents, witnesses, and other relevant parties, and…may even have an ethical obligation to do so. Postings with privacy settings on client social media are subject to formal discovery and subpoenas.”

For parties to litigation who are represented by counsel, attempting to “friend” a party in order to access information behind a privacy wall constitutes impermissible communication. The Committee explained, “A lawyer's review of a represented person's public social media postings does not violate the Rule because no communication occurs. On the other hand, requesting access to information protected by privacy settings, such as making a ‘friend’ request to a represented person, does constitute a communication that is covered by the Rule.”

For unrepresented parties, information behind a privacy wall can be accessed. But in order to do so ethically, lawyers and their agents must provide identifying information when attempting to connect with that person on social media in order to view postings behind the privacy wall: “(I)n social media communication with unrepresented persons, lawyers should identify themselves, state that they are lawyers, and identify whom they represent and the matter.”

Next the Committee turned to researching jurors on social media and reached the same conclusion as other Committees that have addressed this topic, namely that lawyers may only review information about jurors that is publicly available and is not behind a privacy wall.

Of particular interest is the fact that the Committee sided with the rationale handed down by the American Bar Association’s Standing Committee on Ethics and Responsibility (in Opinion 466) and concluded that passive communications, like those that occur when LinkedIn notifies users that another person has viewed their profile, do not constitute impermissible communication with jurors: ”(S)ome social media networks automatically provide information to registered users or members about persons who access their information. In the Committee's view, such notification does not constitute a communication between the lawyer and the juror or prospective juror.” (Emphasis added). Notably the New York City Bar Committee on Professional Ethics opined otherwise in Formal Opinion 2012-2, as did the New York County Lawyers Association Ethics Committee in Formal Opinion 743.

The D.C. opinion also covered the obligations of lawyers when it comes to their client’s use of social media, along with the use of social media by judges, arbitrators, and more. So even if you don’t practice in D.C., it would be well worth your while to review the Committees’ analysis of these timely, and interesting, 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.