social media

Round Up: Robot Lawyers, Email Tracking, Bitcoin and More

SpiralI often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles since September:


Should Judges Provide Online Recommendations? Maryland Weighs In

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

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Should Judges Provide Online Recommendations? Maryland Weighs In

In 2019, most lawyers have accepted that the internet, and online marketing, is here to stay. For some lawyers, the extent of their practice’s online marketing is a law firm website. Others are more tech-savvy and also use social media platforms and other online tools to market their law practice. 

Of course, with those forays into online marketing come ethical missteps. In the beginning, the internet really did feel like the Wild Wild West. But over time, that changed, and ethics committees across the country have stepped up to the plate and provided lawyers with the ethical guidance needed to successfully navigate the 21st century online legal marketing landscape.

One recent opinion of interest that addressed an issue that I haven’t seen covered elsewhere arose in Maryland. In this case, the inquiring attorney was a judge who had a question regarding participation on Avvo. The specific issue under consideration by the Maryland Judicial Ethics Committee in Opinion Request Number: 2019-24 was whether it was ethically permissible for a judge to provide a recommendation for a former law clerk on Avvo.

In the past, ethics committees and courts have considered whether it is permissible for judges to form connections on social media sites with lawyers who practice before them, and the general consensus has been that they may and that doing so doesn’t usually require judges to recuse themselves in order to avoid the appearance of impartiality.. See, for example, ABA Formal Opinion 488 and Law Offices of Herssein and Herssein v. United States Automobile Association, No. SC17-1848 (2018).

In the Maryland opinion, the Committee was faced with a similar issue: Whether providing an Avvo recommendation on behalf of and at the request of the inquirer’s former law clerk could be perceived as affecting the judge’s appearance of impartiality.

At the outset, the Committee necessarily focused on Avvo, describing it as “a comprehensive online legal marketplace connecting consumers and lawyers through its online directory, attorney profiles, Q&A forum, reviews, and other features…(and) offers search tools that facilitate discovery of attorneys…(and each attorney) profile may also include client reviews and attorney endorsements.”

The Committee then turned to the issue of judicial recommendations, explaining that in some cases, judges may ethically provide a reference or recommendation on their official letterhead for an individual based upon the judge's personal knowledge, as long as “the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.”

Next the Committee analyzed the implications of an official judicial endorsement on the Avvo site. The Committee noted that because the judicial endorsement could not be anonymized due to the functionality of the Avvo platform and would be accessible by the general public, it “could potentially benefit the judicially promoted attorney to the disadvantage of others…(and) it presents a clear case of lending prestige that allows another to advance his or her economic interests.”

Accordingly, the Committee determined that judges may not provide Avvo recommendations to attorneys, including former clerks, since doing so negates the appearance of impartiality: “Requestor's Avvo endorsement would quite validly invite neutrality challenges from opposing parties and counsel whenever the endorsed attorney represented the adversary in the judge's courtroom… (and thus a) judge may not confer the prestige of judicial office to an attorney's marketing efforts.”

I’m in agreement with the Committee on this issue. A judicial recommendation on a publicly accessible site like Avvo is more consequential than the existence of a social media connection. Not only does it imply a connection closer than that of a mere social media friendship, it also implies an endorsement that could be perceived as a partiality towards the recipient.

As I always say, the online is simply an extension of the offline. The implications of a judicial recommendation in a public forum are clear, whether it’s a newspaper or a social media site: there is the risk of the perception of judicial preference toward that person. In other words, in this case, the medium does not change the message.

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. 


North Carolina on the ethics of mining social media for evidence

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

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These days, the vast majority of people, including lawyers, interact on social media. For many, social media platforms are a part of their daily lives and are a primary way of communicating with family and friends.

That’s why social media sites are a goldmine when it comes to obtaining evidence for pending litigation. So it’s no surprise that lawyers began to mine social media for evidence more than a decade ago, and when that began to occur, the ethics committees from various jurisdictions weighed in on how to ethically obtain evidence on social media.

The first to do so was the Philadelphia Bar Association in Op. 2009-02 which was followed by, among others, the New York State Bar (Op. 843 in 2010), the New York City Bar (formal Op. 2010-2), the San Diego Bar (Opinion 2022-2), the Oregon State Bar (Op. 2013-189), the Pennsylvania Bar (Formal Op. 2014-300), the Massachusetts Bar (Op. 2014-T05), the DC Bar in 2016), and the Maine Bar (Op. 217 in 2017).

A few months ago, the North Carolina Bar joined their ranks and addressed this issue as well. In mid-July the State Bar Council adopted 2018 Formal Ethics Opinion 5. At issue in this opinion was whether and under what circumstances lawyers may ethically “either directly or indirectly, seek access to social network profiles, pages, and posts…belonging to another person.” The conclusions reached in this opinion were in agreement with the those reached by the majority of jurisdictions on most issues, with a few notable exceptions.

At the outset, like all jurisdictions thus far, the Ethics Committee concluded that lawyers or their agents may view information obtained from publicly viewable social media profiles.

Notably, however, the Committee weighed in on an issue that is typically addressed in relation to researching jurors on social media sites as opposed to parties or witnesses: whether a passive notification from a social media site indicating that a lawyer has viewed the individual’s social media profile constitutes a “communication” from the lawyer. The Committee concluded that it did not and was instead a communication from the social media service. The Committee explained that a small number of views and notifications would be permissible but that lawyers “may not engage in repetitive viewing of a person’s social network presence if doing so would violate Rule 4.4(a)” which prohibits lawyers “from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, and from using methods of obtaining evidence that violate the legal rights of such a person.”

Next the Committee concluded that lawyers are forbidden from using deception to access social media information located behind a privacy wall. That being said, lawyers may, using their own true identities, request access to an unrepresented person’s social network presence behind a privacy wall. The Committee explained that “(t)he person contacted has full control over who views the information on her social network site (and the) grant of the lawyer’s request, without additional inquiry, does not indicate a misunderstanding of the lawyer’s role.”

However, the Committee determined that it was ethically impermissible for lawyers or their agents to request access to a represented person’s restricted social media presence. According to the Committee, absent express consent from the represented person’s attorney, “the request interferes with the attorney-client relationship and could lead to the uncounseled disclosure of information relating to the representation.”

The last issue considered by the Committee is of particular interest since, to the best of my knowledge, it has not yet been addressed by any other jurisdictions. Specifically the Committee considered whether a lawyer may request or accept information from a third party who has access to the restricted information found behind the privacy wall of a person’s social media profile. According to the Committee, doing so is perfectly acceptable for both represented and unrepresented persons. The Committee compared this to the similar offline scenario where lawyers may obtain other types of evidence relevant to a client’s matter from witnesses.

According to the Committee: “(W)hen a lawyer is informed that a third party has access to restricted portions of a person’s social network presence and can provide helpful information to the lawyer’s client, the lawyer is not prohibited from requesting such information from the third party or accepting information volunteered by the third party. Similarly, a lawyer may accept information from a client who has access to the opposing party’s or a witness’s restricted social network presence…However, the lawyer may not direct or encourage a third party or a client to use deception or misrepresentation when communicating with a person on a social network site.”

All in all, an interesting opinion that is worth a read, even if you don’t practice in North Carolina. And if you aren’t already mining social media for information relevant to your clients' cases, then what are you waiting for? There is undoubtedly useful information to be found, and the failure to seek it out arguably amounts to malpractice in this day and age. So there’s no better time than the present to get up to speed on the ins and outs of ethically mining social media for evidence - and this opinion is a great place to start.

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. 


ABA Ethics Opinion On Judges, Social Media, Friendships, and Disqualification

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

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Judges are supposed to be neutral arbiters. Unfortunately, in the real world, that’s sometimes easier said than done.

Ideally, judges would have no connection to the parties and lawyers appearing before them, and thus would be fully impartial. Judges, however, are human. They have close personal relationships, friendships, and many acquaintances. Judges are also lawyers, and as a result, they often personally know the lawyers appearing in their courtrooms. Those relationships are not supposed to affect the their rulings, but if there is the potential that they might, judges are required to disqualify themselves.

A simple concept in theory, but one that isn’t nearly as clear cut in practice. Determining which relationships conflict with the appearance of impartiality is rarely an easy feat. Not surprisingly, the advent of social media connections to our social infrastructure have added a new layer of complexity that some have suggested necessarily complicates this determination.

That’s why many courts and ethics committees have begun to consider the issue of whether judges’ social media connections with the lawyers appearing before them warrant disqualification. For example in 2012, Florida’s Fourth District Court of Appeal addressed this issue 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.

Then in 2018, the Third District Court of Appeal in Florida addressed the very same issue in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421, but reached a different conclusion and declined to disqualify a judge as a result of his Facebook connection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word.” Later that same year, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848 and upheld this ruling, concluding that a Facebook friendship between a judge and an attorney appearing before that judge was not, in and of itself, a sufficient basis for disqualification of the judge.

That approach makes the most sense. After all, a social media connection is simply one piece of the puzzle, and only serves as evidence of some sort of social connection or relationship. For that reason, I was heartened to read a footnote echoing this sentiment in a recent ABA ethics opinion.

In Formal Opinion 488, the Standing Committee on Ethics and Professional Responsibility considered the issue of whether and when the social or close personal relationships of a judge warrant disqualification. The Committee concluded that in making this determination the disqualification inquiry must focus on assessing the nature and quality of a judge’s relationship with the attorney in question.

Notably, in footnote 11, the Committee acknowledged that when reviewing a judge’s friendship with a lawyer, a social media connection alone is not dispositive:

“Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.”

In regard to the issue of whether disqualification is required when a judge has a social connection or close personal relationship with an attorney, the Committee provided the following guidance: “(J)udges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.”

In other words, relationships - including those of judges - are necessarily more complex than a single online connection. Whether disqualification is appropriate in any given case depends on the nature and extent of the relationship. A social media connection is simply one factor to consider. To conclude otherwise would fly in the face of reality and the true nature of human relationships. After all, social media connections, while relevant to this determination, do not a relationship make.

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. 


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. 


New York court on privacy expectations in social media accounts

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

*****

Every year around this time I begin to conduct research for the annual update to the Thomson Reuters criminal law treatise, “Criminal Law in New York,” that I co-author with Brighton Town Court Judge Karen Morris. During the course of my research I often discover cases that arise from interesting overlaps of technology and criminal law.

This year has proven to be no different, and last week I stumbled upon an interesting case from New City Criminal Court, which focuses on issues relating to whether the access to social media accounts by law enforcement triggers constitutional privacy interests.

In People v. Sime, 62 Misc.3d 429 (2018), one issue addressed by the Court was whether the defendant had a constitutionally protected privacy interest in the IP data and photograph metadata that she had uploaded and shared online via a public Instagram account.

In this case, the defendant was charged with, in part, unlawful disclosure of an intimate image in violation of Administrative Code of the City of New York § 10-177 [b][1]. It was alleged that the defendant, who was dating the complainant’s ex-boyfriend, posted nude photos of the complainant to two different Instagram accounts. The photos were allegedly taken by the complainant’s ex-boyfriend. One of the Instagram accounts was alleged to belong to the ex-boyfriend and the other was alleged to have been created in the complainant’s name by the defendant. As part of that prosecution, the court issued a search warrant on Instagram seeking access to the data connected with the two Instagram accounts.

The defendant challenged the search warrant, asserting that it was not supported by probable cause. She conceded that she did not have a privacy interest in the posted photos since they were shared on an account that was open to the public and had no privacy settings enabled. Accordingly, her argument was based instead upon the assertion that “there is a general right to privacy for the IP addresses associated with the person who posted the pictures and the metadata contained in the photographs public (sic.) posted pursuant to the recently decided case Carpenter v. United States, 138 S.Ct. 2206 [2018].”

As I explained in my article last week, in Carpenter the Court held that a warrant was required in order for law enforcement to access historical cell phone geolocation data. In the case at hand, the Court disagreed that the Carpenter holding was applicable on the gourds that IP data and metadata relating to an Instagram photo is not analogous to cell phone geolocation data.

The Court explained that unlike historical cell phone geolocation data, IP data does not necessarily provide information regarding the defendant’s specific location:

“Obtaining IP data does not provide the police the ability to exhaustively know a defendant's exact position — at best it might incidentally reveal what device was used to post a photograph in the general vicinity of an internet router. In other words, at most it will let the police find a building near the used cell phone or computer device on discrete dates when pictures were uploaded for the public to view, and has no bearing on the defendant's day-to-day movement…Similarly, photograph metadata might let you know what camera was used to take a particular picture, and (if it was not already obvious from the picture itself) where that picture was taken.”

Because IP data and metadata provide only a brief snapshot of the user’s location at any given time, the Court compared IP data and metadata to telephone billing records, in which customers have a lower expectation of privacy: “IP data and metadata are roughly analogous to telephone billing records, and there is no legal reason to protect this data to the same extent as long-term GPS data and cell-site information.”

Accordingly, the Court denied the defendant’s motion challenging the search warrant, concluding that “(T)here is no constitutional privacy afforded to the IP data and photograph metadata that the defendant uploaded and shared with the world, nor would a subjectively held privacy expectation be reasonable or one that society is prepared to recognize.”

Digital privacy rights are an important and evolving issue. Now that online interaction and mobile device usage are commonplace, data regarding all aspects of our daily lives is regularly collected by a host of third parties. As law enforcement increasingly seeks access to that information, courts will necessarily continue to grapple with the constitutional nuances presented by varying factual scenarios - and rest assured, I’ll continue to cover their efforts in this regard.

 

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. 


Pennsylvania Supreme Court on ethically mining social media evidence

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

*****

Pennsylvania Supreme Court on ethically mining social media evidence

Social media can be a gold mine for litigation attorneys. There’s a wealth of information available online that can often be used to the benefit of your client at trial. The trick is knowing how to ethically access social media evidence. Because if you don’t fully understand the ins and outs of the various social media platforms and your ethical obligations, your attempts to obtain online evidence favorable to your client’s case could have the opposite result: it could be precluded from use at trial, and you could even face disciplinary action.

The latter is what occurred when a Pennsylvania attorney’s law license was suspended by the Supreme Court of Pennsylvania. In Office of Disciplinary Counsel v. Stacy Parks Miller, Miller’s license was suspended, in part, due to her deceptive behavior in creating a fictitious Facebook page in order to obtain evidence while serving as the Centre County District Attorney.

Specifically, it was alleged that Miller created a fictitious Facebook page in 2011, with the end goal being to curb criminal activity relating to the illegal sale of bath salts. The Facebook page was based on a fake social media persona and purported to be the social media account of a young woman who had recently dropped out of college.

After creating the page she sent an email encouraging her staff to send “friend requests” to others from the fake account in order to legitimize the fake account. Specifically she suggested that they use the Facebook account to “masquerade” and “snoop” on Facebook. While the account was being used by the District Attorney’s Office, “individuals represented in criminal proceedings either sent friend requests to the page or received friend requests from the page.”

In her defense, Miller asserted that the Facebook page represented a “proper law enforcement operation.” The Disciplinary Board of the Supreme Court of Pennsylvania disagreed. The Board noted that the mere act of “having a third-person send a friend request to a represented party in order to gain access to the private portion of their profile violates RPC 8.4(c), and that the actions of Miller far exceeded that limited scope of impermissible conduct. Not only did she create a fake Facebook page, she provided her staff with access to it and actively encouraged them to use it to repeatedly interact with and connect with other individuals on Facebook who were suspected of engaging in illegal activities, some of whom were known to be represented by counsel."

Accordingly, the Board concluded that her actions were in violation of her ethical obligations. The Board explained that “(t)he Facebook page created by (Miller) and disseminated to her staff was fake and constituted fraudulent and deceptive conduct inn violation of RPC 8.4(c)…(Miller) induced her staff, both attorneys and non-attorneys alike, to engage in dishonest behavior and to imply disinterest in matters, without correcting any misapprehensions. The staff carried out (Miller’s) directives and used the page to “friend” individuals, some of whom were defendants. (Miller) enabled her staff to engage in deceptive conduct, without specific direction, for an unrestricted period of time. This conduct violated RPC 4.3(a), 4.3(c), 5.3(b), 5.3(c)(1), and 5.3(c)(2).” As such the Board recommended that her law license be suspended for one year and one day.

This is yet one more example of lawyers interacting online without fully understanding their ethical obligations. Certainly there is a wealth of information - and potential evidence - available on social media platforms, and in 2019, willfully ignoring its existence is arguably malpractice. But before attempting to access information posted online, make sure that you have full knowledge of how the platforms work and what your ethical obligations are in regard to accessing that data. Tread lightly and intelligently when mining social media for evidence, lest you face the same penalty as Ms. Miller.

 

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. 


How Lawyers Are Using Social Media in 2019

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

*****

How Lawyers Are Using Social Media in 2019

I’ve been covering lawyers’ use of social media in my column for the Daily Record since 2008. Back then, most lawyers believed that social media was a passing fad, despite my ardent assertions to the contrary. Some even believed that it was both unethical and unwise for lawyers to use social media. Convincing lawyers that social media was a phenomenon that they needed to learn about was an uphill battle, to say the least.

How times have changed. I first became convinced that a dramatic shift was occurring in 2011 when a reporter for the Democrat and Chronicle, Gary Craig, wrote an article entitled “Threat Alleged Via Facebook ‘Poke.’” As explained in the article, a federal judge was unable to proceed with an arraignment of a defendant who was accused of threatening a witness via a Facebook “poke.” The judge had no idea what a “poke” was, and neither did the attorneys before him, so he sought out - and obtained - the information he needed from a spectator seated in courtroom.

For me, that was a turning point. Because that’s when I knew that social media was actually impacting cases, and that lawyers were finally going to begin to take notice and want to learn about - and use -social media.

Fast forward to 2019, and these days, according to the latest Legal Technology Survey Report issued by the American Bar Association, the majority of lawyers and law firms are using social media for professional reasons in one form or another, whether it’s for business development and networking or for litigation purposes.

According to the Report, 76% of lawyers surveyed reported that their firms maintained a presence on at least once social network. And 79% of lawyers reported that they personally used social media for professional reasons. The reasons for their online interactions varied, with 70% citing career development and networking as their motivating reasons. 54% hoped to obtain clients as a result of their participation online. 48% used social media as a tool to increase their education awareness. And finally, 30% used social media to investigate their cases.

For those lawyers seeking to drum up business as a result of their online interactions, some were successful, with 35% reporting that they’d had a client retain their services directly or via a referral because of their social media use for professional purposes. 46% indicated that their online interaction never resulted in a new client, and 19% weren’t sure.

According to the Report, the most popular social media network amongst lawyers is LinkedIn. 46% of lawyers indicated that their law firms maintained a LinkedIn presence, and 65% reported that they personally maintained a LinkedIn profile for professional purposes.

The second most popular site is Facebook, with 42% of lawyers reporting that their law firms maintained a Facebook presence. 37% of responding lawyers shared that they personally used Facebook for professional reasons, and 90% indicated that they participated on Facebook for personal, non-professional purposes.

Next was Twitter, with 14% of respondents indicating that their law firms maintained a Twitter presence, and 25% reported that they interacted on Twitter for professional reasons using personal accounts. 1% of lawyers reported that a client had retained them as a result of their use of Twitter for professional reasons.

Then there are blogs, which have been around longer than social media, but have decreased in popularity with lawyers over the last few years. According to the Report, 24% of law firms maintain a blog. And, 8% of lawyers reported that they personally maintained a blog focused on a legal topic, down from 15% last year. Finally, 36% reported that a client has retained their services because of their blogging efforts, down from 43% last year. So legal blogging is clearly on the decline, but nevertheless is still a very viable business development tool.

So there you have it: lots of statistics on how lawyers are using social media. And, yes, unlike 2008, the majority of lawyers are learning about - and using - social media in 2019. Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?

 

 

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. 


Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligations

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

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Louisiana court: Online anonymity doesn’t shield lawyers from ethical obligation

Office water coolers used to be gathering places where people discussed current events and caught up on office gossip. But, like many other time-honored traditions, even water cooler conversations have been affected by technology.

Certainly these in-office discussions still occur, but much of the day-to-day discourse about current events has shifted to the online realm. Whether it’s on Facebook, in online forums, or in the comments that follow news articles, there are plenty of opportunities to comment on and share opinions about recent events. Notably, many of these comments can be made anonymously, and as a result, some people are less restrained about their opinions than they would be if their personal identities were publicly attached to them.

Of course, the perceived anonymity is often an illusion, since there are many different ways to go about determining who posted a particular comment, should the need arise to do so. That’s a lesson that was learned the hard way by Salvadore R. Perricone, an assistant U.S. attorney for the Eastern District of Louisiana.

Last month, the Supreme Court of Louisiana handed down an opinion, In re: Salvadore R. Perricone, No. 2018-B-1233, wherein the court considered whether Perricone violated his ethical obligations as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting.

The anonymous postings included the following comments:

A statement that the defense attorney had “screwed his client!!!!,”and was just “as arrogant as [the allegedly bribed official] … and the jury knows it.”
During a federal civil rights trial involving the shooting of an unarmed man he wrote: “Perhaps we would be safer if the NOPD would leave next hurricane and let the National Guard assume all law enforcement duties.  GUILTY AS CHARGED.”
Regarding an indictment alleging conspiracy: “I read the indictment…there is no legitimate reason for this type of behavior in such a short period of time and for a limited purpose. GUILTY!!!”

When his comments were discovered and reported to a judge, an investigation was conducted and disciplinary charges were filed. After reviewing the findings and recommendations of the hearing committee and disciplinary board, the Supreme Court of Louisiana concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Court explained that Perricone’s actions were not innocuous: “When discovered, respondent’s actions caused serious, actual harm in the River Birch and Danziger Bridge cases and, most profoundly, to the reputation of the USAO. There was a potential for harm in the Jefferson and Gill-Pratt cases.”

According to the Court, disbarment was necessary for a number of reasons, not the least of which was to send a message to other lawyers to tread carefully when posting online about pending matters: “Respondent’s conscious decision to vent his anger by posting caustic, extrajudicial comments about pending cases strikes at the heart of the neutral dispassionate control which is the foundation of our system. Our decision today must send a strong message to respondent and to all the members of the bar that a lawyer’s ethical obligations are not diminished by the mask of anonymity provided by the Internet.”

In other words, the lesson to be learned is one that I often repeat: the online is simply an extension of the offline world. You don’t leave your ethics at the door when you enter the online realm. Think before you post - anonymously or otherwise - and refrain from commenting about any matters that you are personally involved in or about which you have inside knowledge. Your ethical obligations require it, and your law license depends on it.

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. 


Supreme Court of Florida weighs in on judges using social media

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

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Supreme Court of Florida weighs in on judges using social media

Whether judges should use social media has been a contentious issue for some time now. Early on, the consensus seemed to be that it was problematic for judges to do so, but over time that’s changed.

So, for example in 2012, Florida’s Fourth District Court of Appeal addressed this issue 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. But then in August of this year, the Third District Court of Appeal in Florida in in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 addressed the very same issue and reached a different conclusion. The court determined that it was departing from the holding in Domville and was declining to disqualify a judge as a result of his Facebook connnection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word” and thus the fact that a judge is Facebook ‘friends’ with a lawyer for a potential party or witness does not necessarily mean that the judge cannot be impartial.

Just last week, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848. At issue was whether the lower court correctly determined that a Facebook friendship between a judge and an attorney appearing for the judge was not, in and of itself, a sufficient basis for disqualification of the judge.

In reaching its decision, the court first examined the concept of a “friendship,” explaining that simply being friends with someone does not indicate the level of closeness of the friendship: “It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not...Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.”

Next, the Court applied this understanding to the concept of a Facebook “friendship” and concluded that not all Facebook friendships between a judge and an attorney appearing in their court require disqualification. The court examined the nature of Facebook connections, explaining that “(t)he establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’...(and) it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships.”

Accordingly, the Court reached the same conclusion as the majority of other jurisdictions that have recently addressed this issue and held that a Facebook friendship, in and of itself, was insufficient to warrant disqualification: “(T)he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”

This is, I believe, the correct decision. As I’ve opined in the past, judges are simply people and have lives outside the courtroom which include friendships with attorney colleagues that pre-date their appointment to the bench. It flies in the face of common sense to issue decisions that prevent judges from interacting on social media with the very same lawyers with whom they are already connected and with whom they regularly interact in public. It’s heartening to see that the Florida Supreme Court agrees with this position and has issued a ruling that aligns with the realities of living in the 21st century.

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.