Sui Generis--a New York law blog

D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

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

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D.C. Bar Issues Lengthy, Restrictive Opinion On Social Media For Lawyers

In November, the District of Columbia Bar issued an opinion that was over 7,000 words long. In Opinion 370, the Committee provided a rather in depth analysis on the ethics of lawyers using social media for both marketing and personal use.

This lengthy opinion is unnecessarily restrictive and and is a perfect example of a knee jerk reaction to technology that only serves to stifle lawyers’ use of online tools. Rather than issue a measured response to social media based on analogies to similar offline conduct, the Committee instead treated online interaction and communication by attorneys as suspect and something to be discouraged.

This was evident from the very outset, when the Committee defined social media in an unnecessarily broad manner. The definition included any type of conduct through “any electronic platform”, even private emails, VOIP conversations, and instant messages. And “content” posted online is very broadly defined as “any communications, whether for personal or business purposes, disseminated through websites, social media sites, blogs, chat rooms, listservs, instant messaging, or other internet presences, and any attachments or links related thereto.” (Emphasis added.)

Next, the Committee made the very important, and correct, observation that lawyers have an obligation to understand the social media platforms that they use. The Committee explained that lawyers must “understand the functionality of the social networking site, including its privacy policies…and (l)awyers must understand the manner in which postings on social media sites are made and whether such postings are public or private.”

From there, the opinion went south, with the Committee’s analysis and conclusions resulting in convoluted and complex guidelines seemingly designed with one purpose: to discourage lawyers from using social media altogether. Among the more unusual requirements and obligations the Committee imposed on attorneys were the following:

“Disclaimers are advisable if…the lawyer may be engaged in sending or receiving messages from "friends," whether those friends are other attorneys, family or unknown visitors to the lawyer's social media page, when those messages relate, or may relate, to legal issues.” (Emphasis added).

“Caution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict.” (Emphasis added.)

“(G)reat caution should be exercised whenever a social networking site requests permission to access e-mail contacts or to send e-mail to the people in the lawyer's address book or contact list…(T)hese connection services could potentially identify clients or divulge other information that a lawyer might not want an adversary or a member of the judiciary to see or information that the lawyer is obligated to protect from disclosure.”
“We recognize that an attorney's ethical obligations to review and regulate content on social media extends only to those social media sites or webpages for which the attorney maintains control of the content, such as the ability to delete posted content, block users from posting, or block users from viewing. However, notwithstanding the scope of the attorney's affirmative obligations, it is highly advisable for attorneys to be aware of content regarding them on the internet.

”(F)or websites or social media sites where the attorney does not have editorial control over content or the postings of others, we do not believe that the Rules impose an affirmative duty on a lawyer to monitor the content of the sites; however, under certain circumstances, it may be appropriate for the attorney to request that the poster remove the content, to request that the social networking site remove the content, or for the attorney to post a curative response addressing the inaccurate content.”

So, to sum up: 1) disclaimers are required if postings may relate to legal issues, 2) lawyers should avoid any and all postings that are ambiguously described as taking “positions on issues,” 3) lawyers should refrain from allowing a social media site to access their contacts since doing so would somehow (the mechanism is not clear) disclose confidential information, and 4) lawyers are strongly encouraged to be aware of everything that is posted about them or their firm anywhere on the Internet and take steps to remove content that is inaccurate. And, of course, all of these rules apply regardless of whether the content being posted by an attorney is for business or personal reasons.

In other words, “communicate” online (and be aware of everything that everyone on the world might be saying about you) at your own risk - and at the risk of losing your law license - if you’re an attorney in D.C.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Snapchat for Litigators

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

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Snapchat for Litigators

Snapchat: it’s not just for kids anymore. Snapchat has grown quickly since its launch in 2012 and now has more active users than Twitter, coming in at more than 150 million each day. That’s why lawyers, especially litigators, need to familiarize themselves with this social media platform since it could potentially provide valuable evidence in your next case.

If you’re not already familiar with Snapchat,t he app allows people to send photos and videos to others, but the pictures self destruct within seconds of being viewed. Users can chat in the app and add filters or doodles to their photos to make them more entertaining.

So why should Snapchat matter to lawyers? Because as people interact on Snapchat, they leave a trail of digital evidence that could be relevant to your client’s litigation matters. And this isn’t simply supposition. Snapchat has already reared its ugly head in court, in both civil and criminal matters, on many occasions.

For example, in California, a minor was placed on probation following a hearing on a juvenile delinquency petition wherein it was alleged that he violated Penal Code s. 647(j)(1) by engaging in the unauthorized invasion of privacy by disseminating Snapchat videos of another youth who was allegedly masturbating in a bathroom stall. (See, In re M.H., 205 Cal. Rptr. 3d 1 (Ct. App. 2016).

In another case, two Salem, Massachusetts teenagers were convicted following a jury trial of sexually assaulting a 16-year old girl who was intoxicated and then sending Snapchat videos of the assault to their friends. Although the videos had been automatically deleted from the recipients’ phones seconds after they’d been viewed, screenshots were taken by one of the witnesses before the deletion occurred. Those screenshots were later used as evidence at trial.

Snapchat evidence has also proven useful in civil litigation matters. One particular Snapchat feature is cropping up often in personal injury litigation: the “speed filter” feature. This feature, if activated, tracks how fast someone is traveling when a photo is taken and sent to others via Snapchat.

For example, one case in which this feature is taking center stage is in a lawsuit filed in April 2016 in Georgia against Snapchat by a man who was involved in a motor vehicle accident in which he was severely injured. He alleged that the other driver was traveling more than 100 mph and was using Snapchat, and its speed filter feature, immediately before the accident occurred. According to his attorneys, the lawsuit was filed against Snapchat since they believed that the other driver had an insurance policy with very low limits. However, had the lawsuit also been filed against the other driver, the alleged Snapchat speed filter evidence would no doubt have been useful to establish the speed at which she was driving at the time of the accident.

In other words, whether it’s a civil or criminal matter, this increasingly popular social media app has the potential to affect your litigation cases. That’s why it’s important to both understand how this social media app works and how to obtain data relevant to your case from Snapchat. The good news is that Snapchat has published a Law Enforcement Guide (online: https://www.snapchat.com/static_files/lawenforcement.pdf) that covers the ins and outs of requesting data from Snapchat, whether made pursuant to a subpoena, court order, or search warrant. The types of data that can be obtained via these means includes text-based chat conversations, since these are not automatically deleted after being viewed, and photos of videos sent via Snapchat that have not yet been opened and viewed.

So, the bottom line is that if you’re a litigator, Snapchat should definitely be on your radar. Learn about it and don’t overlook it as a potential source of evidence. In some cases, it could very well be a goldmine, providing a crucial piece of evidence that just might make your client’s case.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Supreme Court of New Mexico on judges using social media

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

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Supreme Court Of New Mexico On Judges Using Social Media

Judges and social media: according to most judicial ethics commissions, it’s a dicey proposition that doesn’t always work out well for judges. As I’ve discussed in past columns, more often than not, judges are chastised by judicial ethics commissions for their online interactions. In many cases, the conclusions are based on knee jerk reactions to “newfangled technology” and are grounded in an inherent misunderstanding of the nature of online platforms and interactions.

Such is the case with the Supreme Court of New Mexico’s decision last week in State v. Thomas, No. 34,042. In this case, the defendant contended that social media postings by the district court judge exhibited judicial bias, where, during the pendency of the trial, the judge 
posted comments to his election campaign Facebook page regarding his role in the case and his opinion of its outcome.

The Court chose not to address the specific allegations regarding the judge’s social media usage since it was overturning the defendant’s conviction on other grounds. But it then proceeded to provide guidance on judges using social media and offered this blanket statement which essentially discouraged judges from interacting online in nearly all contexts:

“While we make no bright-line ban prohibiting judicial use of social media, we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.”

After issuing this unfortunate mandate, the Court then proceeded to provide some conflicting guidelines designed to assist judges who choose to interact on social media.

First, the Court wisely advised judges to avoid posting about pending matters—advice that the judge in this particular case would have been wise to heed—while simultaneously and inexplicably forbidding judges from making any public comments online whatsoever: “We clarify that a judge who is a candidate should post no personal messages on the pages of these campaign sites other than a statement regarding qualifications, should allow no posting of public comments, and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”

The Court then continued along this vein by reiterating that judges should avoid most, if not all, online public statements: “Judges should make use of privacy settings to protect their online presence but should also consider any statement posted online to be a public statement and take care to limit such actions accordingly.”

Next, the Court then cautioned that judges must understand the implications of interacting online (which would presumably be via private postings only since all public communications seem to be out of the question): “A judge must understand the requirements of the Code of Judicial Conduct and how the Code may be implicated in the technological characteristics of social media in order to participate responsibly in social networking.”

So, essentially, the Court’s position seems to be that judges should avoid all public communications when interacting online, even communications as benign as, “Here’s a photo of my new granddaughter. Isn’t she cute?” or “What a game last night! Go Bills!” The Court asserts that it’s not creating a bright line rule prohibiting social media use by judges, but the apparent prohibition against public communications —which are the very essence of social media — seemingly belies this claim. For that reason, the Court missed the mark and I would respectfully suggest that the Court’s conclusions regarding judges using social media will not withstand the test of time.



Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Another knee-jerk reaction to technology — this time in California

 

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

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Another knee-jerk reaction to technology — this time in California

California legislators and court officials are taking a stand. It’s a murky, misguided one, lacking in common sense, but it’s a stand nonetheless. It’s a stand against progress, the Internet, and the looming threat of this newfangled thing called social media. And they’re going to win this fight, no matter what the cost to the jury and judicial system.

At least, that seems to be their end goal, but I could be wrong. It’s a bit hard to tell since they’re so caught up in preventing conduct that’s been around as long as the jury system (but now wears a 21st century mask) that it’s difficult to discern the rationale behind their muddled thought processes.

Let me back up. I’m getting a bit ahead of myself. Let’s start with the facts. There is California legislation pending that is supported by state court officials that will result in fines being imposed on jurors (up to $1,500) for using the Internet to research and communicate about pending cases. This legislation was drafted in response to the purported threat of increasing mistrials due to juror misconduct.

Now let’s face reality. Mistrials have always occurred due to juror misconduct. Jurors have always disregarded court instructions and researched cases using outside resources. This is nothing new.

In the past, jurors read newspapers or watched the evening news to obtain information about pending cases. Jurors also discussed the cases with their spouses or neighbors. Nowadays, jurors continue to use more traditional methods to learn about cases and parties, but also have the Internet available to them and conduct online research and share their experiences via social networks.

The only difference is that jurors’ impermissible online activities can now be documented and tracked. It’s a simple matter to access digital data evidencing a blatant disregard of a court’s instructions, but it’s another matter entirely to prove that a juror read a newspaper or spoke to another person about a pending case in violation of a judicial order to refrain from doing so. So, because the violative digital interactions are more easily preserved, more mistrials may be arising due to those particular actions.

But it’s important to acknowledge that it’s not the behavior that has changed, it’s the method. Jurors are violating court orders in more trackable ways. And now that judges can prove jurors are ignoring them, heads are gonna roll! Jurors heads. Ok not their heads. But their wallets will most certainly be impacted. And that’ll teach ‘em, right?

One thing it will undoubtedly teach them is that sitting on a jury is a risky—and potentially costly—business. Instead of encouraging citizens to participate in the democratic process of serving on a jury, this legislation will have the opposite effect. People will be more reluctant to serve on juries and our judicial system will suffer. Jurors will find ways to avoid jury duty (and potential fines) and the concept of “ a jury of your peers” will become an antiquated concept that is so 20th century.

If that’s the goal of the California legislature, then Bravo! They’re well on their way to stifling voluntary citizen participation in the jury process. But it that’s not the intention, then perhaps it would be wise to reconsider penalizing jurors for simply being human in the 21st century.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Facebook, privacy settings and spoliation

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

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Facebook, privacy settings and spoliation

Once again, social media and the law collide, this time in the Western District of New York. In March, United States Magistrate Judge Marian Payson handed down a decision in Thurmond v. Bowman, 2016 WL 1295957 addressing allegations that the plaintiff should be sanctioned for spoliation after revising the privacy settings to her Facebook account.

Two interesting issues were addressed in this case, which arose from claims that the defendants violated the Fair Housing Act and other statutes when they declined to rent an apartment to the plaintiff after learning that she had two children: 1) whether spoliation sanctions were warranted for the alleged inadvertent deletion by the Plaintiff of 3 Facebook posts and 2) whether sanctions were warranted due to the plaintiff’s revision of the privacy settings of her Facebook account after being warned by the court to preserve there status quo of her Facebook account.

First, the court considered the motion for spoliation sanctions. The defense alleged that the Facebook postings at issue were relevant to the Plaintiff’s claims of emotional distress. They asserted that they had accessed the Plaintiff’s publicly viewable Facebook posts and had printed out many of them. Then a few days later—after the court had admonished the Plaintiff to preserve the status quo of her Facebook account—many of the posts were no longer publicly available and it was later learned that three of the posts consisting of photos of the Plaintiff’s children had been deleted from her account. The motion seeking spoliation sanctions then followed.

The Court first addressed the relevance of the social media postings to the plaintiff’s claims of emotional distress and wisely noted that per se relevance did not apply: “(W)ithin the specific factual context of a given case, social media postings may be relevant to particular claims or defenses, including where social media posts may contradict claims of physical or emotional injury…That said, ‘[a] plaintiff's entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.’…As some courts have cautioned, “the relationship of routine expressions of mood [in a social media posting] to a claim for emotional distress damages is much more tenuous [than the relationship between a post ‘reflecting engagement in a physical activity” to a claim for physical injury damages].’”

The Court then concluded that the three missing posts, which the plaintiff contended that she inadvertently deleted, were not relevant to the claims of emotional distress and thus the defendants had suffered no harm: “With respect to the three deleted posts, defendants have failed to articulate any basis upon which to conclude that they are relevant to the issue of emotional distress. I likewise can think of none. (W)ith respect to the three Facebook posts that are missing from the printed posts produced to defendants…, I find that they are not relevant to this action; in any event, defendants possess two of the postings and part of the third, as well as many other photographs depicting Thurmond's children. Thus, the deletion of the three posts from Thurmond's account cannot be said to have harmed defendants in their defense of this action and sanctions for spoliation are not warranted.”

Finally, the Court addressed the issue of whether sanctions were warranted due to the plaintiff’s blatant disregard of the Court’s preservation order. The Court declined to issue sanctions but admonished the plaintiff for her actions: “By altering her Facebook account, Thurmond violated the Court's May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants' counsel's view. Of course, it does not appear that the postings were deleted, and they remain available for defendants' use, and defendants have not shown that they were prejudiced by Thurmond's conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts…(and) Plaintiff is admonished that any instances of future similar conduct are likely to result in sanctions.”

So let this be a lesson to you: tread carefully when it comes to advising clients regarding preserving social media account information, especially when litigation is pending. And always ensure that the social media data—all of the digital data, not just the printed version—is preserved and available for disclosure. Otherwise spoliation sanctions will undoubtedly follow, to the detriment of your client’s case.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

New York judge rules Instagram contact violates order of protection

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

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Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.

At issue in People v. Lemons is whether actions taken by the defendant using the social media platform Instagram constituted a communication that was in violation of a pending order of protection. In the accusatory instrument the complainant alleged that there was an order of protection in place that forbade the defendant from contacting her by electronic or other means and that the defendant violated it by sending her a “follow” request on Instagram.

The defendant brought a motion to dismiss the accusatory instrument for facial insufficiency, contending that the follow request he allegedly initiated via Instagram, which caused a notification to be sent to the complainant, via Instagram did not violate the order of protection because he did not directly communicate with her.

The Court rejected his argument, concluding that the request that he allegedly initiated through Instagram was, in fact, a communication: “(T)he Court has little trouble concluding that when the defendant sent the complainant a message through the Instagram app this was “communication or any other contact by ... other electronic or any other means,” and was forbidden by terms of the order of protection. The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it.”

According to the Court, he effectively communicated with the complainant even thought it was not a direct communication. The Court explained that he initiated the connection request knowing it would set a series of events in motion which would result in a notification from Instagram to the complainant regarding his interest in connecting with her on the platform: “(E)ven though the specific allegation in the information is that the communication did not flow directly from the defendant to the complainant, since defendant asked Instagram, and not the complainant herself, for permission to view the complainant's page, and Instagram forwarded that request to her. There is no reason to conclude that this forwarding was anything other than an automatic and automated feature built directly into the app, and thus there is also no reason to conclude that the communication was made only to Instagram, and not to the complainant.”

As is often the case in well-reasoned decisions issued by judges regarding online interactions, Judge Statsinger compared the defendant’s actions in this case to similar “offline” behavior that was analogous to the actions alleged to have been taken by the defendant: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”

This was an interesting issue of first impression in New York and Judge Statsinger did a great job analyzing the issues and provided a clear, concise, and logical decision. One more social media platform has now been addressed in this context. Rest assured—many more will follow.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

New Jersey Court On Ethical Implications Of Lawyers Mining Social Media

 

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

*****

New Jersey Court On Ethical Implications Of Lawyers Mining Social Media

I’ve written many times in the past about how lawyers can ethically mine social media for evidence to support their clients’ cases. A number of ethics committees have already addressed this issue and most recently, the New Jersey Supreme Court considered whether the head of the state’s attorney disciplinary body could prosecute the lawyers for their agent’s alleged Facebook spying on their client’s adversary while litigation was pending, despite a local disciplinary commission concluding that the lawyers’ conduct was ethical.

In this case, John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584) (online: http://www.judiciary.state.nj.us/opinions/supreme/A6214JohnRobNJ.pdf), the plaintiffs in this case represented the defendants in a personal injury lawsuit. It was alleged that during the pendency of the personal injury claim, the defendants asked one of their paralegals to research the Internet, including social media sites, for evidence relevant to the case. The paralegal did so and initially discovered a Facebook profile belonging to the injured plaintiff that was publicly accessible.

However, at a later pointing time, the injured plaintiff revised his Facebook profile’s privacy settings, making it so that his posts could only be viewed by his Facebook “friends.” Once this occurred, according to the opinion, “plaintiffs directed the paralegal to access and continue to monitor the non-public pages, and she submitted a ‘friend request’ to (the injured plaintiff).”

In doing so, “the paralegal did not misrepresent her identity, but she also did not reveal that she worked for defendants’ law firm and was investigating (the injured plaintiff).” Her friend request was accepted and the injured plaintiff later learned of the paralegal’s actions. As a result, among other things, his counsel filed an ethics grievance alleging that her actions were improper since she contacted their client without first reaching out to them. The Secretary of the District II Ethics Committee then reviewed this claim and concluded that even the allegations were true, they did not amount to unethical conduct.

The issue was appealed and eventually made its way to the New Jersey Supreme Court, which was tasked with deciding the very limited issue of whether “the Office of Attorney Ethics (OAE) may investigate a grievance against an attorney alleging misconduct violating the Rules of Professional Conduct (RPCs) after the Secretary of a District Ethics Committee (DEC) has declined to docket the matter.”

The Court concluded that the ethics probe could go forward, explaining that “No reported case law in our State addresses the sort of conduct alleged.” This conclusion was based, in part, on the fact that the defendants’ attorneys alleged in their complaint that because they lacked familiarity with how Facebook worked, they did not intentionally act unethically. As explained in the Court’s decision, they claimed “that they acted in good faith at all times and had not committed any unethical conduct. They explained, in part, that they were unfamiliar with the different privacy settings on Facebook.”

This defense does not bode well for the defendants’ attorneys. That they failed to learn about the ins and outs of Facebook prior to directing their agent to mine it for evidence is an unconvincing argument. If you’re going to use a particular type of technology in your practice, you’d be wise to ensure that you understand how it works. In fact, recent amendments to the comments to the ABA’s Model Rule 1.1, which have in turn been adopted by many states, suggest that lawyers have an obligation to stay abreast of changes in technology. The failure to do so may very well amount to an ethical violation at best and malpractice at worst.

This case is yet another example of what I often tell lawyers: when mining social media for evidence, err on the side of caution. If you’re not sure whether it’s ethically permissible to engage in a certain action, then don’t do it. Better safe than sorry.

 

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Lawyers and Social Media in 2016

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

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Lawyers and Social Media in 2016

Social media has been part of our daily lives for nearly a decade. At first, many lawyers were skeptical, believing that social media offered little value to their practices. But over the years, as social media has enmeshed itself into our culture, the effects of it upon our day-to-day lives is indisputable. Social media impacts both our personal and professional lives, a fact that many lawyers are finally accepting.

That’s why lawyers are increasingly acknowledging the importance of understanding--and using--social media. For some lawyers, especially litigators, it's because social media is a tool that helps them provide better representation to their clients. Whether it's mining social media for evidence or researching jurors online, social media is helping them to make their clients' cases in court.

Some lawyers are using social media for business development while others are interacting online for networking purposes. In fact, according to the results of the most recent ABA Legal Technology Survey Report, more lawyers than ever are using online tools and social networks to forward their professional goals. The results from the 2015 report show that lawyers are participating on social media more than ever before, with solo and small firm attorneys often leading the way, although large firm lawyers occasionally lead the pack.

For example, according to the report, 85% of law firms have a website and 76% of law firms now maintain an online presence compared to only 55% in 2012. Lawyers report that they interact online for a variety of reasons, with career development and networking leading the way (71%), followed by client development (48%), education and current awareness (45%), and case investigation (24%).

Lawyers with the following practice areas are most likely to have personal social media profiles for work-related purposes: commercial and corporate (80% each), contracts (79%), and litigation and employment/labor (77% each).

When it comes to the specific social media sites, LinkedIn is the most popular with 57% of law firms and 73% of lawyers reporting a presence on Linkedin. Next is Facebook, where 35% of firms have a Facebook page and 27% of lawyers maintain a personal profile on Facebook. Twitter comes in third, with 21% of firms using Twitter and 23% of lawyers using it for professional purposes. And Google Plus comes in last, with 10% of firms and 9% of lawyers reporting a Google Plus presence.

But are their efforts paying off? 24% of lawyers report that they've been retained by a client because of their social media efforts, so all signs point to yes.

Lawyers are blogging as well with 26% of law firms maintaining a legal blog, up from 22% in 2012. 7% of individual lawyers also maintained a blog for professional purposes in 2015 compared to 9% in 2012. Managing partners were most likely to maintain a legal blog for professional purposes (11%), followed by solo practitioners (9%), and associates (7%). Partners were the least likely to report they maintain a legal blog for professional purposes (4%).

According to the report, lawyers spend 1.9 hours per week updating/maintaining their personal legal blog and 39% have been retained by a client because of their blogging.

So, the results of the survey indicate that, without a doubt, lawyers are recognizing the benefits of interacting online and are increasingly using social media and other online tools to create connections and market their practices. And, even more importantly, their efforts are paying off.

It’s a far cry from when I first began encouraging lawyers to blog in 2007. Back then, I was often met with blank stares. My how times have changed! It’s a whole new online world out there and lawyers are finally taking advantage of the many business development and networking opportunities the Internet has to offer.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

Oracle v. Google: Judge begrudgingly permits online research of jurors

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

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Oracle v. Google: Judge begrudgingly permits online research of jurors

In a recent Order issued in Oracle v. Google, No. C 10-03561 WHA, United States District Court Judge for the Northern District of California, William Alsup, had a lot to say about lawyers using social media to research jurors—and none of it was very positive. His viewpoint on this practice was made all too clear in the first sentence of his Order:

“Trial judges have such respect for juries — reverential respect would not be too strong
to say — that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.”

Although I’ve often asserted that online activities are simply an extension of those occurring offline, Judge Alsup begs to differ. In his mind, researching jurors using 21st century methods diverges from more traditional methods in a way that is downright invasive. This, despite the fact that said jurors have voluntarily created their online profiles and made them publicly available.

According to Judge Alsup, this only occurs because most social media users are an uninformed, naive bunch: “It is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice. (Otherwise, there would be no need for websites explaining the intricacies of privacy settings.)”

In other words, Judge Alsup is contending that for some reason, information publicly available online somehow differs from information that is publicly available offline. Granted, it’s a simpler matter to obtain information online, but lawyers have always researched publicly available information about jurors using more traditional methods. That the methodology is different should be of no moment. As you’ll see, Judge Alsup’s outlined concerns regarding the proposed online jury research only underscore this idea, since his concerns apply equally to information obtained both online and offline.

One concern he raises is “the apparent unfairness in allowing the lawyers to do to
the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity
to the no-research admonition.” But it has always been the case that lawyers can research jurors but jurors cannot research the lawyers or the case. That the information sought to be gleaned about the jurors in this case will be obtained from online resources is irrelevant to this concern (or should be).

In the Order, Judge Alsup also expresses the concern that “by allowing counsel to conduct research about the venire and the jury is that it will facilitate improper personal appeals to particular jurors via jury arguments and witness examinations patterned after preferences of jurors found through such Internet searches.” Again, this same information has always been available from offline resources, such as, for example, “letters to the editor” or other published writings penned by jurors.

Another perceived problem was that said online research was a threat to the “privacy of the venire…Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.” As for this concern, the online research that the attorneys would conduct arguably forwarded one of the court’s stated goals: to reveal bias or a failure to follow court orders. And in the case of online conduct by jurors that violated court orders during the pendency of the case, the effects could be far reaching do to the nature of online communications and thus the incentive to prevent such conduct would arguably override the concern for the jurors’ need to protect their online information (that they’ve allowed to be made publicly available).

In other words, this Order strikes me as a classic case of a knee jerk reaction to technology. In the end, Judge Alsup begrudgingly permitted the attorneys to conduct online research of potential jurors, as long as they were informed that it would be occurring. But he did so only after engaging in the judicial equivalent of waving a stick and yelling “get off my lawn, you young whipper snappers!” that being said, it’s progress, nonetheless, and I suppose that reluctant progress is better than none at all.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].

NY judge weighs in on whether ‘tagging’ violates order of protection

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

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NY judge weighs in on whether ‘tagging’ violates order of protection

Social media permeates every aspect of our lives so it’s not surprising that online interactions can sometimes trigger criminal prosecutions. That’s why, in the past I’ve discussed how social media and other online communications can constitute aggravated harassment or violate pending orders of protection.

That’s exactly what occurred in People v. Gonzalez, Case No. 15-6081M. This decision was handed down by Westchester County Supreme Court Justice Susan Capeci in January of this year and addressed the issue of whether certain Facebook activities violated an order of protection.

At issue was whether the defendant committed criminal contempt in the second degree when she “tagged” the protected party in posts made to Facebook. In this case, an order of protection was in place in favor of the complainant and required that the defendant ”refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means ...."

It was alleged that the order of protection was violated when the complainant received notifications from Facebook that the defendant:

did "tag" [the protected party] in two Facebook posts the "first stating
"Stupid." The second post the defendant tagged [the protected party] in stated: "You
and your family are sad:(sonia and especially maribel!! You guys have to come stronger
than that!! I'm way over you guys but I guess not in ya agenda.

The defendant did not deny the conduct but instead contended that the conduct alleged—that she “tagged” the complainant in two Facebook posts—was not specifically prohibited by the order of protection.

The Court disagreed, noting that the order of protection clearly specified the type of conduct that was prohibited—communication via electronic means—and that the defendant’s conduct was targeted toward the complainant:

The Court finds the above communication alleged to have been made by the
defendant via Facebook to be sufficient to establish, if true, every element of the
offense charged and the defendant's commission thereof. The Order of Protection
prohibited the defendant from contacting the protected party by electronic or any other
means. The allegations that she contacted the victim by tagging her in a Facebook'
posting which the victim was notified of, is thus sufficient for pleading purposes to
establish a violation of the Order of Protection.

While I agree with the Court’s conclusions, I was somewhat surprised that there was no further discussion as to what constitutes a “communication” and whether tagging someone in a Facebook post falls under that definition. Because, as I’ve oft repeated, the online is an extension of the offline, it would have been helpful to examine the nature of the defendant’s conduct in order to ascertain how and why it constituted a “communication.” Similarly it would have been illustrative to provide examples of offline conduct that were somewhat comparable to the defendant’s alleged behavior.
Assuming that the defendant was aware that when she “tagged” the complainant in a post, the complainant would likely receive a notification (depending on her Facebook settings), then clearly the defendant understood that she was in essence sending a message to the complainant. This was especially so given that she not only “tagged” her but also included messages in the post directed specifically to the complainant. However, even if she had not included messages of that nature, it’s conceivable that simply “tagging” someone in a post might constitute prohibited communication.

Unfortunately, the court did not address this issue and instead simply concluded that the alleged conduct violated the order of protection. While the decision was arguably correct, it was devoid of useful guidance for other courts who will undoubtedly wrangle with similar issues in the future.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at [email protected].