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When judges, political commentary, and social media collide

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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When Judges, Political Commentary, and Social Media Collide

I’ve written many times about the use of social media by judges. Generally speaking, I’m in favor of judges using social media and oppose arbitrary restrictions on their social media use. For example, I believe that judges should be permitted to be “friends” on social media with attorneys who appear before them and that doing so does not somehow affect their obligation to remain impartial.

That being said, due to the unique nature of their position, judges are understandably restricted from certain types of online behavior, just as they are when it comes to offline behavior. After all, as I’ve always said, the online is simply an extension of the offline.

So when I read that a Utah judge had been suspended for 6 months as a result of his online interactions, I was concerned. Then I read the opinion of the Supreme Court of Utah in In re: Inquiry of a Judge: the Honorable Judge Michael Kwan. Given the facts of this case, I agree with the Court’s decision.

In this case, it was alleged, among other things, that Judge Kwan had made a number of statements online regarding Donald Trump, both before and after the election. Notably, Judge Kwan had already been reprimanded in the past for making improper statements regarding candidates running for political office, with two separate informal opinions being issued by the Utah State Bar Ethics Advisory Committee regarding those incidents. His statements regarding Donald Trump were made after those opinions were handed down.

In the case at hand, Judge Kwan asserted that many of his postings were protected by the First Amendment as constitutionally protected speech. The Court declined to address that argument on procedural grounds, ruling that the judge failed to raise a constitutional objection at the time that the violation occurred, and thus cannot raise it for the first time during the disciplinary proceeding. The Court explained its rationale as follows:

“(W)e have required judges who fail to abide by laws or rules to put the public on notice that their violation is based on a principled contention that the law or rule is, itself, unlawful. Without such notice, a judge may appear to violate laws or rules at will, in disregard of the legal system they are charged with administering. And when judges appear to consider themselves above the law, public confidence in the fair.”

Even though the Court declined to reach his constitutional defense, it nevertheless limited its inquiry to a single posting that the judge himself acknowledged was improper and was not constitutionally protected: a statement that he made that indicated his opposition to a presidential candidate. Specifically, he posted the following in reference to Donald Trump: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?”

The Court concluded that “the single online posting regarding then–presidential candidate Donald Trump, together with the other conduct Judge Kwan admits violated the rules, viewed in light of Judge Kwan’s history of judicial discipline, amply justify the sanction the JCC ordered and we implement.”

In reaching its decision, the Court focused on the role that judges play in our society and emphasized the importance of the appearance of judicial impartiality in fulfilling that role: “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.”

The Court also explained that upon accepting the responsibility of being part of the judiciary, judges do so with the understanding that they are henceforth obligated to act in a manner that upholds public confidence in the judiciary: “Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large. And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.”

I’m in full agreement with the Court’s decision. Certainly judges don’t leave their right to free speech at the door when they enter the judiciary. But their speech is necessarily limited somewhat due to the unique nature of their duties. Judges often have to walk a fine line in that regard, and sometimes they may unintentionally cross it.

But in the case at hand, that line was crossed far too many times in the past, and as a result the judge should have erred on the side of caution when interacting both online and off. He failed to do so and must now face the consequences.

Certainly we’re in the midst of a uniquely turbulent political landscape, and the immediacy and reach of social media can be an enticing way to voice ones views. But even so, it’s important to think before posting. And given their position, judges in particular must tread carefully when addressing political issues, lest they impermissibly cross that line.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Email tracking and lawyers: not a great mix

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Email tracking and lawyers: not a great mix

For most lawyers, email is their primary method of correspondence with clients, courts, opposing counsel and others. Over the years, we’ve become increasingly reliant on email because it’s a fairly simple and cost-effective way to communicate.

Of course, as technology has advanced, so too have the tools that can be used to make email more useful. Many of these tools have the end effect of streamlining email correspondence. Email add-ons and built-in features allow users to schedule emails, automate the process of sorting and filing emails, and snooze emails for viewing at a later date, among other things. In most cases, these new features increase the efficiency of email.

But sometimes email add-ons can have a more nefarious purpose. Case in point: email tracking tools. Typically this type of software allows the sender to track a wide range of things, including when a sent email and its attachments are opened, how long the recipient views the email and attachments, how many times they was opened, whether they were forwarded, and the geographical location of the recipient.

Email tracking clearly raises some ethical red flags in the context of lawyer communications, so it’s no surprise that its use by lawyers has been addressed by a number of ethics committees.

First there was New York Opinion 749 (2001), wherein the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” Then there was the Alaska Bar Association Ethics Committee which concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

Pennsylvania has also issued an opinion addressing email tracking. In Formal Opinion 2017-300 the committee concluded that Pennsylvania lawyers should avoid using email tracking tools with opposing counsel. Most recently, in Opinion 18-01, the Illinois State Bar Association likewise determined that it is unethical for lawyers to use email tracking software with opposing counsel.

Last week, the issue of whether lawyers should use email tracking software once again reared its ugly head, but this time in the context of a war crime court martial. As covered in a number of major news outlets, defense counsel for Edward Gallagher - a man accused of stabbing an Islamic State group militant to death - alleged that the military prosecutor in that case sent an email that included email tracking software to multiple lawyers, paralegals, and a reporter with the Navy Times.

Two weeks after the allegations were made, the judge presiding over the case issued a ruling that resulted in the removal the prosecutor from the case. The reasons for the removal were based on constitutional due process and Sixth Amendment grounds and because the threat of investigation into alleged prosecutorial misconduct could be viewed as a conflict of interest.

If you weren’t already convinced about the perils of lawyers using email tracking, this case offers even more evidence that lawyers and email tracking software are a bad combination. Likewise, it offers additional support for the recommendation I made when I wrote about email tracking software last year - and that I still stand by today:

“For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.”

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com. 


Ohio Court on service of process via Amazon messaging

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

*****

Ohio Court on service of process via Amazon messaging

In 2019, technology affects so many aspects of practicing law. Whether it’s running your law firm using cloud-based billing and practice management software, using legal software to obtain data analytics to assist in litigation, or mining social media for evidence, there’s no escaping the impact of 21st century technologies on the practice of law.

Of course, that’s not always a bad thing, and technology often reduces the tedium of law practice and reduces friction and difficulties often encountered by lawyers in their day-to-day practice. One example of this theory in action is the use of online communication tools for service of process.
Years ago, this was a unique concept that many courts approached with caution. But as online communication and interactions became increasingly common, courts slowly began to allow lawyers to use them to effect service of process.

Fast forward to 2019, and effecting service of process using social media platforms is no longer unheard of. Oftentimes, the platform of choice is Facebook. The first time I wrote about this was in October 2014. At that time, two different judges 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)). Next, in 2016, 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.

I also covered this issue in June of 2017 when I wrote about 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 Facebook and concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

But other platforms have also been used to effect service of process such as WhatsApp, which I wrote about in November 2018. In that case, Alzaabi v. Jaston, a Queens County Supreme Court Justice allowed the plaintiff, who was alleging that the defendant defrauded him via an online sale, to serve process using WhatsApp.

Which brings us to the case at hand, Noco Co. v. Chang, 2019 WL 2135665. In this trademark infringement lawsuit filed in the Northern District of Ohio, the plaintiff alleged that defendant used an Amazon merchant account to sell infringing products. The name registered with the Amazon merchant account was associated with a trademark application under that same name, and listed an address in China.

After multiple failed attempts to obtain a waiver of service from the defendant pursuant to the Federal Rules of Civil Procedure, the plaintiff filed a motion requesting permission to serve the defendant via Amazon messaging in lieu of effecting service using the procedure authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents.

Due to the unique nature of the Hague Convention, the court declined to grant the plaintiff’s request to serve the defendant through online channels. The Court explained its rationale as follows: “Given the fact-specific nature of matters concerning service abroad, the Court makes explicit the facts that dictate that service on Defendant Chang must be transmitted through China’s Ministry of Justice: (1) Defendant Chang appears to live in China, a Hague Convention signatory state that has objected to service by the Article 10 methods; (2) Chang’s physical address is not unknown; (3) the only way to effect service is by transmitting documents abroad (e.g., there is no U.S. subsidiary or U.S. counsel); and (4) Plaintiff has not already attempted to serve Defendant using this method authorized by the Hague Convention.”

Notably, the Court lamented that the requirements of the Hague Convention necessitated service of process using more traditional methods, in large part due to their lack of expediency: “Requiring Plaintiff to wait many months for service feels shockingly out-of-step with today’s fast-paced e-commerce…However, the Court’s hands are tied. Plaintiff NOCO must serve Defendant Chang through China’s Ministry of Justice.”

So in this case, 21st century methods were rejected. But I would suggest it’s a rather unique situation and that more often than not, especially where disputed transactions occurred online and other more traditional attempts at service of process have failed, courts will increasingly consider 21st century online options. So don’t rule them out.

It’s 2019 and the world is changing rapidly. You can’t practice law in a vacuum and technological change is a reality. Litigation is not immune from its effects, so if you’re a litigator make sure you’re technologically savvy and are taking steps to incorporate technology learning into your daily routine. At the end of the day, you’ll be a better lawyer, thus more able to provide the best possible representation for your clients. And after all, isn’t that what the practice of law is all about?

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.