Sui Generis--a New York law blog

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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Top 5 LinkedIn Tips Every Lawyer Should Know

When I started writing this column in 2007, I often covered social media use for lawyers. However, because my interest lies in emerging technologies, the focus of my articles necessarily shifted over time as new advancements arrived that had the potential to change the legal profession.

Even though social networking may be considered old news in the technology world, online interactions continue to have a noticeable impact on the practice of law. Some platforms have gained increasing relevance while others have declined. LinkedIn is a prime example of a social media site that has gained ground since the pandemic, transforming from what was essentially an online resume repository to an active, engaging online site.

Given its significant rise, an update seemed necessary. I have over 207,000 followers on LinkedIn, so I have experience with the site and lots of advice to share! To that end, below you’ll find my top 5 tips for lawyers seeking to increase their presence on LinkedIn.

First and foremost, determine your goals. If you don’t know what you’re trying to achieve by interacting on LinkedIn, then your efforts will be wasted. Are you trying to reach potential clients? Is your intent to expand your professional network and increase referrals from colleagues? Or are you seeking to stay on top of the latest industry news and trends? Whatever your goals are, identify them before diving in. They will necessarily impact your engagement on the site.

Next, ensure that you have created a robust LinkedIn profile. Your headline should concisely describe your role and value to both clients and the profession.The headline section of your profile should concisely describe what you do and the value you bring to your clients and the profession. The first few words of your headline will appear whenever you comment on someone else’s post so are very important. Only include the most relevant work history, and carefully consider whether you want the dates that you obtained your education degrees to appear on your profile. Your age and stage of life will necessarily impact your preferences. 

The third tip is to post with a regular cadence. Your posting frequency will depend on your goals and the amount of time you have available to focus on your LinkedIn presence. Whether you post once a week or every other day, make sure to stick to your plan. That way your followers will know when to expect to hear from you. The LinkedIn algorithm also frowns on erratic posting patterns, so make a plan and stick to it. You’ll reach more connections that way, leading to greater engagement and success.

Fourth, post thoughtfully. Share a mix of personal observations intermixed with professional updates. Avoid blasting your successes and triumphs into the ether in the absence of other updates that include your personal and insightful perspective on trends or news of interest to your followers. The algorithm favors early morning posts that include an image, so keep that in mind. Finally, post links to any news stories or other website links in the comments rather than in the post since LinkedIn prefers posts that don’t send users to other websites.

Last but not least, carefully curate your network. Follow people who interest you and conform to your goals, develop a community of like-minded individuals, and consistently engage with your network. Read the posts of others and like, comment, and share them, when appropriate. LinkedIn, like all social media sites, is about engagement, so engage with others rather than talking at them from your virtual podium.

LinkedIn is a very different site than it was before the pandemic. Its newfound levels of engagement from professionals worldwide have resulted in a dynamic community of professionals that should not be overlooked. So don’t rest on your laurels. Take advantage of the many advantages it offers by following the I shared above. By implementing these tips, you’ll be well-positioned to maximize your impact and networking potential on LinkedIn.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPaypayment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

Think before you post to social media lest you face 6-month suspension

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

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Think before you post to social media lest you face 6-month suspension

If I’ve said it once, I’ll say it again: think before your post. This recommendation applies to everyone, of course. But if you’re a lawyer, then you’d best heed my advice and tread lightly when posting commentary online on social media sites or elsewhere. Otherwise you run the risk of running afoul of your ethical obligations and unleashing the wrath of your bar’s disciplinary body. At the very least, you’ll face embarrassment and at the worst you may be disciplined or even barred from the practice of law altogether.

If you’re not yet convinced, then maybe the results of a very recent South Carolina disciplinary action will do the trick. In the Matter of David Paul Traywick, Opinion No. 28037, which was filed in June 2021, an attorney faced the music for his online behavior to the tune of a 6-month suspension.

At issue in this opinion were 12 different postings made on Facebook by the attorney in question. Notably, the Commission on Lawyer Conduct received a significant number of complaints about his actions: “Beginning in June 2020, ODC received complaints from forty-six separate individuals regarding statements Respondent made on his Facebook page. At that time, Respondent maintained a personal Facebook account with a privacy setting of ‘public,’ meaning his posts were visible to anyone, not just his Facebook ‘friends,' and even if the person did not have a Facebook account. In his Facebook profile, Respondent identified himself as a lawyer and referenced his law firm.”

In its opinion, the Commission focused on two particularly inflammatory statements, both of which were “not expressive; they (we)re expressly incendiary…and had the effect of inciting, gender and race-based conflict beyond the scope of the conversation…(and the) fact Respondent is a lawyer exacerbated this effect.”

One of the statements was about tattoos and his extreme dislike for both tattoos and people with tattoos, particularly “these females.” The other related to the murder of George Floyd, wherein he insinuated - by using very derogatory language - that Mr. Floyd’s life didn’t matter and as proof of that fact, he noted that the stock markets went up in the days after his murder.

The Commission explained that both statements were quite troubling, and that the posting regarding Mr. Floyd was of particular concern since it “was intended to incite intensified racial conflict not only in Respondent's Facebook community, but also in the broader community of Charleston and beyond. We hold this statement in particular tended to bring the legal profession into disrepute, violated the letter and spirit of the Lawyer's Oath, and constitutes grounds for discipline under Rules 7(a)(5) and 7(a)(6), RLDE, Rule 413, SCACR.”

For that reason, the Commission found that because of the attorney’s actions and the extremely inflammatory nature of his postings, he should be suspended from the practice of law for 6 months and would also be required him to complete “at least one hour of diversity education…a comprehensive anger management assessment…(and) undergo an evaluation through the Lawyers Helping Lawyers program…” In other words, they determined that those postings were strong evidence that he had a multitude of issues that needed to be addressed.

So my dear readers, don’t be like David. When you’re interacting online and find yourself particularly upset about a random issue and decide that you’d like to share your ire with friends near and far, please, for the love of all that is holy, take a deep breath. Then take another one, and then one more. Finally, ask yourself if it’s absolutely imperative that you share your frustration with the world. The answer is almost certainly “no.”

But if for some reason you should determine that the answer is “yes” and your opinion relates to a particularly divisive topic, perhaps consider asking your life partner, or even one of your kids, for their opinion as to whether you should post it. Then maybe ask your goldfish or your cat.

By the time you’ve solicited these opinions, you’ll likely have calmed down a bit, and probably won’t care as much about the issue as you did 10 minutes earlier. In which case, don’t post about it. Put your keyboard down, shut your laptop, and slowly step away from your desk. And go watch a movie or read a book. Maybe even take a walk.

Whatever you do, I beg of you, don’t post that rant online. Trust me; it’s for the best. One day you’ll thank me.

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 [email protected].

Lawyers: Take a look at these two social media platforms

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

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Lawyers: Take a Look at These Two New Social Media Platforms

As you plan for a successful 2021 for your law firm, don’t forget to consider how you plan to use social media to forward your firm’s marketing and business development goals in the coming year. Importantly, you may want to think about whether you should broaden your presence to additional social media sites.

You might be wondering why you should bother interacting on new platforms. I would suggest that it’s well worth it for forward-thinking lawyers to invest time into establishing a presence on less populated platforms early on. This is because it gives you the opportunity to make a name for yourself and your firm before everyone else jumps on the bandwagon and competition for attention increases.

There are two social media apps that have caught my eye in recent months -  and keep in mind that this is the first time in years that I’ve been excited about the potential of new social media sites for lawyers. These two platforms are Clubhouse (joinclubhouse.com) and TikTok (tiktok.com). Because these two sites are quickly gaining momentum, there’s no better time than now to make your mark.

First, there’s Clubhouse. If you’re not already familiar with it, Clubhouse is an audio chat platform that is available as an iOS app and is invite only for now. It consists of user-created drop-in audio chat rooms. You can form your own room or join rooms created by others. These chat rooms can be created spontaneously or scheduled ahead of time. Topics run the gamut, and there’s something for everyone no matter what your areas of interest.

The reason Clubhouse is such a good fit for lawyers is that it’s a great way to showcase your expertise, connect with professional colleagues who might be potential referral sources, and generate exposure for your law firm. It also offers a format that is comfortable and familiar to most lawyers. For many lawyers, sharing information verbally is a much better fit than communicating in writing via a blog or by video on YouTube. Audio chat is less formal than writing, and there’s no pressure to create a professionally produced video - or to be perfectly groomed and dressed every time you interact. Instead it’s a decidedly more informal format that is perfect for lawyers seeking to showcase their expertise and share their knowledge.

Finally, the flexibility and convenience offered by Clubhouse can’t be beat. You can hop on the app whenever you have downtime throughout the work day, or during lunch or after hours. No matter when you decide to interact, it’s a great way to make the most of a short break.

Another app that shows promise for lawyers is TikTok. This mobile app makes it easy for users to view – and create – short, informal videos that are one minute or less. There’s lots of educational content on TikTok which is why it’s such a good fit for lawyers looking to connect with potential clients by providing informational videos. There are already many lawyers using the app for this purpose, so seek them out for some ideas to help get you started. Importantly, if you go this route and decide to provide educational content, make sure you conform to ethics regulations about engaging online, such as ensuring that you provide legal information, not advice.

The bottom line: One of these social media platforms, or even both, may very well be worth your time in 2021. You’ll have to carefully consider your goals and your comfort level with the different formats. Take each one for a test drive for a week or so and then make a determination as to whether either one might be a good use of your time or provide value.

As you might expect, I’m active on both platforms, so make sure to connect with me once you join. Hope to “see” you on one of these sites soon!

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 [email protected].

ABA offers ethical guidance on responding to negative online reviews

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

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ABA Offers Ethical Guidance on Responding to Negative Online Reviews

Now that we live in a digital world, online reviews are becoming increasingly useful tools for consumers. Using these reviews, consumers are able to make more informed decisions when making purchasing decisions about products or services.

Online reviews are great for consumers, but for business owners, navigating the world of online reviews can be tricky since responses to reviews, both negative and positive, are decidedly public. This confounding newfound reality can present problems for lawyers seeking to respond to negative online reviews since doing so can sometimes trigger ethics rules regarding confidential information.

That’s where Formal Opinion 496, which was released last week by the American Bar Association (ABA), comes in. (Online: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf). In it, the ABA provides guidance and best practices for lawyers when it comes to ethically responding to negative online reviews.

At the outset, the Committee explained that because of the duty of confidentiality, “lawyers cannot blog about information relating to clients’ representation without client consent, even if they only use information in the public record, because that information is still confidential.”

Next, the Committee addressed the three exceptions to this prohibition, concluding that none of them applied when lawyers seek to respond to negative online reviews. First, the Committee determined that two of the exceptions were clearly inapplicable to the issue at hand. First, online criticism was not a situation that constituted a “proceeding.” Second, online criticism was not an occasion where it was necessary for lawyers to defend a criminal charge or civil claim against them relating to conduct involving the client.

Upon rejecting the applicability of the first two exceptions, the Committee turned to the third exception: where there exists a “controversy between a lawyer and client.” After analyzing opinions handed down from other jurisdictions, the Committee ascertained that the third exception was likewise inapplicable to the issue at hand: “The Committee concludes that, alone, a negative online review, because of its informal nature, is not a ‘controversy between the lawyer and the client’ within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client’s matter.”

After reaching the conclusion that lawyers are precluded from disclosing confidential information when responding online to negative reviews, the Committee provided some best practices to assist lawyers who are faced with negative online reviews.

First, the Committee suggested that lawyers reach out to the host of the website or search engine where the negative review appeared and request that the review be removed. The Committee cautioned that it’s important to avoid revealing any confidential information when doing so, and opined that lawyers may choose to say that “the post is not accurate or that the lawyer has not represented the poster if that is the case.”

The Committee also advised that, from a practical standpoint, lawyers should carefully consider whether to respond at all. The Committee explained that "the more activity any individual post receives, the higher the post appears in search results online… (and) no response may cause the post to move down in search result rankings and eventually disappear into the ether.”

If, however, you choose to respond, the Committee offered a number of different permissible options. First, the Committee suggested that lawyers attempt to move the conversation offline with a response such as, “Please contact me by telephone so that we can discuss your concerns.” But the Committee cautioned that if you follow that route, you will need to ensure that you follow up with the client since doing “nothing to attempt to assuage the person’s concerns risks additional negative posts.”

Another option offered by the Committee is to respond online by simply advising that ethical rules preclude a response. Here’s an example of this type of response offered by the Committee: “Professional obligations do not allow me to respond as I would wish.”

Finally, the Committee cautioned that if you do ultimately choose to respond online, you must avoid disclosing “information that relates to a client matter or that could reasonably lead to the discovery of confidential information by others.”

Whatever choice you make, tread lightly, and never forget that the internet is forever. Evan if you change your mind and delete a response or request that it be removed, its memory (and possibly a screenshot) will live on. The best course of action is to err on the side of caution and think before you post. As I always say: better 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 [email protected].

Judges and social media use: Drawing the line in New York

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

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Judges and social media use: Drawing the line in New York

In 2020, it’s safe to say that I no longer need to convince lawyers that social media is here to stay, since nearly everyone - including lawyers - regularly interacts on least social media site. And by “lawyers” I’m referring to pretty much anyone with a law degree, including judges.

That being said, judges are unique. When they accept the position of a judgeship, they agree to walk a fine line in both their public and private lives in order to maintain the appearance of impropriety. As a result, given the very public nature of most social media interactions and the ease of accessing the same, this particular medium of communication can sometimes prove to be problematic for judges.

Case in point: a part-time judge who hoped to personally publish online decisions handed down by the judge. Specifically, in New York Judicial Ethics Opinion 20-58, which was handed down earlier this month, the enquiring judge sought input on whether it was permissible to “post his/her published judicial decisions on his/her personal social media website by listing the ‘case name, citation and link to the Official Reporter website’…(and also) comment on the decision either on social media or elsewhere.”

In reaching its decision, the Advisory Committee on Judicial Ethics noted that it was limiting its opinion to items posted to judges’ personal social media websites and was not addressing the issue of whether judges’ campaign committees can post links to the judges’ published decisions as part of a judicial campaign.

The Committee explained that as it related to the question raised by the enquiring judge, there were two different issues under consideration: 1) whether there was a material, relevant difference between judges posting judicial decisions on personal social media websites as opposed to providing them to a third-party news entity for publication in print or online, and 2) whether part-time judges posting their judicial decisions on a personal social media website might create an impression that they were indirectly using their judicial status to promote their law practices.

In regard to the first issue, the Committee explained that although the publication of decisions online is not inherently inappropriate, the primary concern was that doing so could, in some situations, be seen as inviting or encouraging interaction with the judge. The Committee opined that “there is a material, relevant difference in a judge posting his/her own judicial decisions on his/her personal social media website, rather than providing them to a third-party news entity that may publish them in print or online.”

According to the Committee, in many cases, online postings by judges are rarely problematic if judges post solely about “hobbies, social events or milestones with friends or family, and a wide variety of other such ordinary, non-political topics unrelated to his/her judicial office.” But the Committee concluded that when judges post their judicial decisions online, it runs the risk that doing so “may be seen as implicitly inviting discussion, comment, or other input on it from friends, family, or other members of the public.” As such judges should refrain from doing so.

Next, the Committee turned to the second issue, and determined that if part-time judge  s who also practice law were to post their judicial decisions to personal social media sites, it could impermissibly “create an impression the judge is indirectly using his/her judicial status to promote his/her law practice.”

Thus, the Committee concluded that for multiple reasons judges should refrain from posting their judicial decisions on their personal social media websites.

In an effort to provide additional guidance to judges regarding permissible online interactions and where to draw to the line, the Committee explained that “the more frequently and prominently a judge references his/her judicial position on his/her personal social media website, the greater the risk he/she will be seen as using that judicial position to advance his/her private interests.”

In other words, New York judges are not banned from interacting online. Instead, they should carefully consider the ways in which they’d like to interact, and then ensure that they walk that fine line between permissible interactions and those that either advance their private interests or invite impermissible online discussions related to their position as a judge.

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 [email protected].

Round Up: ABA Techshow, Chatbots, Cybersecurity, and More

I 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 published from late-January to present:

• Marketing your practice: The ins and outs of legal client relationship management tools - ABA Journal 
• ProductNote: Apple Magic Trackpad 2 - ABA GPSolo eReport 
• What you need to know about virtual and chatbot assistants for lawyers - ABA Journal 
• Legalweek20: Déjà Vu All Over Again - Above the Law 
• Amplify The Message Of Women In Legal Tech With The Hashtag #legaltechX2 - Above the Law 
• ABA Survey: Lawyers and Social Media in 2020 - MyCase Blog
• Legal Billing: Bill More Efficiently Using These Resources and Tips  - MyCase Blog
• ABA Survey: Lawyers, Cybersecurity, and Secure Client Portals - MyCase Blog
• ABA Techshow 2020: Everything You Need to Know - MyCase Blog
• ABA TECHSHOW 2020: Check Out These Sessions -  MyCase Blog
• ABA TECHSHOW 2020: All The Visual Notes - MyCase Blog
• ABA Techshow: The 2020 Wrap Up - MyCase Blog

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

I 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:

• The how and the why of law blogs - ABA Journal
• ILTA 2019 Technology Survey: Change Is Afoot - Above the Law
• Beware The #RobotLawyer Invasion - Above the Law
• The Future Is Now: Lawyers, Artificial Intelligence, And Data Analytics - Above the Law
• Email Tracking: One More Reason Lawyers Should Avoid Email - MyCase Blog
• Law Firm Oversight: Your Ethical Obligations - MyCase Blog
• New Survey on Technology Use by Law Firms: How Does Your Firm Compare? - MyCase Blog
• Check Out the Latest MyCase Updates! - MyCase Blog
• Bitcoin as Payment for Legal Services: Is it Ethical? - MyCase Blog
• Top 7 Billing Tips for Law Firms - MyCase Blog
• ABA Survey: More Lawyers Using Cloud Computing in 2019 Than Ever Before - MyCase Blog

Should Judges Provide Online Recommendations? Maryland Weighs In

Here 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 [email protected]. 

North Carolina on the ethics of mining social media for evidence

Here 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 [email protected]. 

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

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

*****

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 [email protected].