Sui Generis--a New York law blog

Guidelines Issued On Jurors And Social Media For New York Courts

This week's Daily Record column is entitled "Guidelines Issued On Jurors And Social Media For New York Courts."  My past Daily Record articles can be accessed here.

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Guidelines Issued On Jurors And Social Media For New York Courts

Last year the Social Media Committee of the New York State Bar Association’s Commercial and Federal Litigation Section issued Guidelines that addressed the ethics of lawyers using social media. You may recall that I wasn’t sold on the necessity of such a lengthy report addressing what I believe is a relatively simple concept: online conduct is simply an extension of offline conduct. For that reason, the guidelines were unnecessary since offline analogies can usually be found for online conduct.

In comparison, just last month the Committee released a new report which offers guidelines for courts on the issue of jurors and social media. This report provides much-needed analysis of issues that are affecting the judicial process on a daily basis. Jurors are often impermissibly using social media in ways that have long-lasting, costly effects on our justice system and judges are struggling to keep up with the changes wrought by jurors’ ability to use online platforms to obtain information about cases and share their experiences with the world.

Enter the Social Media Jury Instructions Report.This well researched report offers recommendations for judges to help address jurors’ use of social media and adeptly balances jurors’ use of social media with the interests of the judiciary and litigants.

At the outset, the Committee began by acknowledging the profound impact of social media on our culture: “Social media has revolutionized how we communicate. It routinely serves as both a
means of communication and a source of information for jurors and counsel. Its use must be
anticipated and its impact addressed during jury selection, at trial, prior to and during jury
deliberations, and after trial.”

According to the Committee, at the start of each case, it’s important to ensure that jurors understand that many of their online communications are public and an be viewed by anyone with Internet access: “(C)ourts should consider an instruction that jurors be ‘advised that what you may view as a private social media communication made by you or someone you know may or may not be private and can be viewed or followed by the public, including the lawyers in this case.’”

Next, the Committee explained that judges should provide clear and illustrative instructions to jurors regarding the types of online activities and communications that are permissible: “To adequately communicate the scope of what a prospective juror may or may not do and
what is expected of them, it is necessary to instruct jurors using examples from the technology
jurors are likely to use. For example, it may be difficult for some jurors to understand that a
general instruction not to use the Internet or social media is also a specific instruction not to use
common services and websites such as Google, Bing, Twitter, Facebook, YouTube, Snapchat,
Wikipedia, Google Maps or MapQuest to perform ‘research’ on a case…(J)ury instructions need to include detailed and specific explanations of the reasons certain activities are prohibited, examples of violations drawn from existing case law, and the range of the activity prohibited.”

The Committee also provided detailed guidelines for judges, with the end goal of reducing the potential impact of improper social media communications on jury trials. It summarized recommendations as follows: “(C)ourts…should: (1) consult with counsel prior to jury selection concerning the potential review and/or monitoring of “public” juror social media communications during jury selection, trial and/or deliberations; (2) consider the Section’s revised model New York’s Pattern Jury Instructions; and (3) consider displaying in the jury deliberation room a social media usage poster warning of the consequences of improper social media communications.”

All in all these guidelines are very useful for both litigators and judges and offer great insight into the impact of social media on litigation, including ways to avoid, or at least mitigate, the costly effects of the improper use of social media and online tools by jurors. It’s a very thorough, valuable report and is well worth a read.

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 Judge Allows Service Via Facebook

This week's Daily Record column is entitled "Another Judge Allows Service Via Facebook."  My past Daily Record articles can be accessed here.

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Another Judge Allows Service Via Facebook

Social media has permeated all aspects of our lives. Whether it’s news breaking on Twitter, professionals connecting on LinkedIn, people sharing momentous occasions on Facebook, or other simply sharing their latest meal on Instagram, it’s hard to escape the effects of social media. That’s why it’s not surprising that social media is increasingly cropping up in the practice of law, whether it’s mining social media for evidence in litigation, researching jurors online, or judges permitting the service of process to occur via social media sites.

For example, in October 2014, I wrote about two judges who had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia and a New York family court judge. Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case.

Most recently, Cheryl L. Pollak, United States Magistrate Judge for the Eastern District of New York, considered the issue of whether a plaintiff could serve process upon the defendant via Facebook and email. In Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), the plaintiff asserted that service by more traditional methods would be impracticable since he’d been unable to locate the plaintiff “despite sending process servers to both of defendant's home addresses, speaking with defendant's sister at one of the home addresses about defendant’s whereabouts, and hiring a private investigator in an effort to locate the defendant… Moreover, after searching various computer databases and social media platforms, petitioner contends that defendant has changed her name several times.”

The Court agreed that serving the defendant via more traditional methods was indeed impracticable and that other alternatives should be considered. In reaching its decision as to whether service via social media might be an option, the Court noted that in recent years, the attitude toward the service of process via social media had changed: “Courts have acknowledged that service by Facebook is a relatively “novel concept," and "that it is conceivable that defendants will not in fact receive notice by this means;" however, courts must remain open to ‘considering requests to authorize service via technological means of then-recent vintage.’"

Next the Court moved on to the plaintiff’s proposed method of service and concluded that “petitioner's proposed method of service by email and Facebook alone are not reasonably calculated to provide notice of the action to defendant” since he had failed to provide sufficient evidence that the email address he intended to use did, in fact, belong to the defendant. Likewise, he had failed to establish that the Facebook account he believed belonged to the defendant was actually maintained by her. However, the court noted that the defendant had been able to successfully reach the defendant in the past using U.S. mail.

Accordingly, the Court granted the defendant’s motion for an alternate method of service via Facebook, but also required him to attempt to effect service using other methods as well: “Plaintiff is Ordered to attempt service of process of the summons and petition by all of the following methods: (1) by sending copies of the summons and petition by certified mail, return receipt to defendant's last known address and to defendant's sister at this address; (2) by emailing a copy of the summons and petition to the email address [email protected]; and (3) by sending a Facebook message to Tata Shaw, which is linked to the Tata Shaw Facebook page, that contains a copy of the summons and petition.”

Another court, another day. No longer is social media a foreign concept or a fad to be discounted. Instead, it’s simply an everyday part of 21st century life; ignore it at your peril and to the detriment of your clients.

 

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].

Colorado Bar on connecting with judges and researching jurors online

This week's Daily Record column is entitled "Colorado Bar on connecting with judges and researching jurors online (Part 1)."  My past Daily Record articles can be accessed here.

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Colorado on connecting with judges and researching jurors online

Last week I covered the first part of an opinion issued by the Colorado Bar Association Ethics Committee, Formal Opinion 127. I discussed the Committee’s conclusions regarding lawyers mining social media for evidence and then promised to address the second half of the opinion this week. So, today I’ll be covering the portion of the opinion where the Committee discusses whether it’s ethical for lawyers to connect with or research jurors and judges online.

At the outset, the Committee explained that online communications with jurors are no different than offline communications: “Essentially, communications between a lawyer and a juror through social media are no different than face-to-face communications or telephonic communications between a lawyer and a juror.”

Next the Committee opined that lawyers may view jurors’ public social media profiles without triggering any ethical issues, even in cases where the social media platform notifies the juror that the lawyer accessed his or her public profile. The Committee noted that it agreed with the American Bar Association’s take on this issue, since “in such circumstances, the lawyer is not communicating with the juror. Rather, the social media service is communicating with the juror based on a technical feature of the particular social media, consistent with agreements between the provider and the subscriber.”

The Committee likewise concluded that the same rationale applies to judges’ public social media profiles. Accordingly, lawyers may view the public profiles of judges before whom they have a case pending: “Judges who maintain a presence on social media should expect that attorneys and parties appearing before them will view the public portion of the judge’s profile. Similarly, lawyers should advise their clients to expect opposing counsel or their agents to view the public portions of their social media profiles.”

Next the Committee turned to issue of whether lawyers or their agents my request to view restricted portions of the social media profiles of jurors. The Committee concluded that doing so was impermissible: “Without express authorization from the court, any form of communication with a prospective or sitting juror during the course of a legal proceeding would be an improper ex parte communication, whether a lawyer or someone else acting on the lawyer’s behalf initiates the communication.”

Finally, the Committee addressed the issue of whether lawyers may request to connect with judges presiding over a case in which the lawyer Is Involved as counsel or as a party. This type of online behavior was also determined to be impermissible: “(Lawyers may participate) on social networking sites with judges…However, Colo. RPC 3.5 prohibits a lawyer from actively communicating ex parte with a judge during the period the lawyer is appearing as counsel or as a party before a judge, concerning or relating to the matter before that judge…A lawyer generally should not send a "friend request" to a judge while the judge is presiding over a case in which the lawyer is appearing as counsel or a party… At least one commentator has recommended that to eliminate any risks and to comply with Rule 3.5, a lawyer and judge who know they are part of the same restricted social network, and who learn that the lawyer is to appear in a matter before the judge, should "un-friend" one another.. While the Committee does not believe such steps are mandated, lawyers must be cautious about what they post on any social media network of which they know a judge is a member while they have legal matters pending before that judge.”

All in all this was a well-reasoned opinion that tackled a host of important ethical issues faced by 21st century lawyers. It’s well worth a read, even if you don’t practice law in Colorado, since it provides lots of background information on social media and sound conclusions regarding the ethics of lawyers interacting online with witnesses, parties, jurors, and judges.

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].

Colorado Weighs In On Researching Social Media For Evidence (Part 1)

This week's Daily Record column is entitled "Colorado Weighs In On Researching Social Media For Evidence (Part 1)."  My past Daily Record articles can be accessed here.

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Colorado Weighs In On Researching Social Media For Evidence (Part 1)

In November 2015, the Colorado Bar Association Ethics Committee issued an in depth and well-reasoned opinion covering many of the ethical issues lawyers encounter when trying to use social media to investigate their clients’ cases. Because Formal Opinion 127 addresses so many different topics, I’ll cover the Committee’s conclusions regarding how to ethically mine social media for evidence in this article. Next week I’ll focus on the Committee’s analysis regarding how to ethically connect with or research jurors and judges online.

At the outset of this opinion, the Committee wisely noted that online investigation is quite similar to research conducted offline: “In most respects, conducting investigations or discovery through social media is no different than performing these tasks by any other means.”

Next, the Committee tackled the ethical issues encountered when lawyers or their agents view information on social media that is publicly available and is not behind a privacy wall. The Committee agreed with the conclusion reached by most other jurisdictions and determined that there is no ethical bar to viewing information that is publicly available when mining social media for evidence: “Bar association ethics committees that have addressed this issue generally agree that lawyers may view any information publicly posted by a witness, or included on the public portion of that person’s social media profile. Such information is treated no differently from any other publicly available information or public record. The Committee believes that the same rule applies to the public portion of a social media profile or posting established by any…individual.”

The Committee then moved on to the ethics of attempting to access online information found behind a privacy wall. First the Committee explained that lawyers and their agents may not engage in deception to access restricted information. “Engaging in any form of deception to gain access to the restricted portion of a person’s social media profile violates Colo. RPC 8.4(c), and also violates Colo. RPC 4.1 if the lawyer’s actions occur during the representation of a client…Lawyers also may not circumvent the prohibition against seeking information through social media by means of deception by delegating investigative tasks to another person.”

Next the Committee explained that if a person is known to be represented by counsel, it is impermissible to request access to restricted online information without obtaining consent from the attorney. But, the ethical obligations of lawyers who attempt to view the restricted information of a person who is not represented by counsel, whether a party or witness, are different.

The Committee rejected the New York City Bar’s minority view that lawyers in this situation need not disclose anything more than their name and concluded that lawyers and their agents must provide information sufficient to allow the unrepresented person to make an informed decision about granting access to social media information behind a privacy wall. The Committee elaborated: “This means (1) providing the name of the lawyer requesting access or for whom the requesting person is acting as an agent, (2) disclosing that the lawyer is acting on behalf of a client, and (3) disclosing the general nature of the matter in connection with which the lawyer is seeking information. The lawyer also must identify the client if disclosure is necessary to avoid a misunderstanding regarding the lawyer’s role…and may have to explain that his or her client has interests opposed to those of the unrepresented party.”

Finally, the Committee considered the ethical obligations attorneys face when seeking to obtain information from another person who already has access to restricted portions of an individual’s social media account. The Committee explained that: “Under no circumstances may the lawyer request that the third person make requests for new or additional information from a party or witness if the lawyer would be legally or ethically prohibited from requesting or obtaining it directly. Moreover, the lawyer may not request the third person to engage in deceptive conduct to obtain access to new or additional information from a party or witness through social media.”

As I mentioned above, the Committee also addressed the issues lawyers encounter when attempting to connect with or research judges and jurors online. Check back next week to learn what conclusions the Committee reached regarding those issues.

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

New York City Bar on Lawyers and LinkedIn

This week's Daily Record column is entitled "New York City Bar on Lawyers and LinkedIn."  My past Daily Record articles can be accessed here.

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New York City Bar on Lawyers and LinkedIn

In December 2015, The Association of the Bar of the City of New York Committee on Professional Ethics addressed the issue of whether the use of LinkedIn by attorneys constitutes attorney advertising. While I agree with the committee’s conclusions (which I discuss below) and the overall approach toward the application of the ethical rules to attorneys using LinkedIn, my general sense of positivity toward Formal Opinion 2015-7 quickly dissolved as I attempted to wade through its more than 9,000 words.

That’s right, the opinion was, by my count, 9,008 words long. That’s a lot of verbiage to address what I’ve always maintained is a relatively simple principle: online behavior is merely an extension of offline conduct. As such, general guidelines regarding lawyers’ online activities are all that is needed. Specific case-by-case — or platform-by-platform — analysis is unnecessary, especially in light of the ever-changing nature of both online activities and online platforms.

Of course, I quickly realized (beginning at word 376) that the committee and I disagreed on that very point — hence their incredibly lengthy opinion targeted toward a single online platform. The committee opined: “(The ethics rules) created in the analog age defy easy extension to the digital world and, in particular, to social media content. Ethics committees tasked with providing guidance on these issues find themselves straining to force fit the proverbial square peg of social media into the round hole of legal ethics – with varying degrees of success.”

The committee then used the next 8,632 words of the opinion to reach the conclusion that, in most cases, lawyers can use LinkedIn and doing so doesn’t constitute attorney advertising.
You can either grab a cup of really strong coffee and attack the opinion yourself or, in the spirit of sharing and collegiality, I’m more than happy to summarize it for you in 400 words or less.

Without further ado, here’s the essence of the opinion in a nutshell.

Lawyers use LinkedIn in many ways, so “it should not be presumed that the primary purpose an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.”

In order for an attorney’s LinkedIn Profile or other communications or content on LinkedIn to constitute attorney advertising, the following 5 conditions must be met:

“a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”

If the attorney’s LinkedIn content meets all five of these requirements, “it is a communication that relates to the lawyer’s services and is primarily for the purpose of attracting new clients for pecuniary gain” it is attorney advertising, unless it falls within am exception to that rule. The applicable exceptions are:

“It is a communication with another lawyer or an existing client;
It is a communication with a former client that is germane to the former representation;
It is a communication in response to an inquiry from a potential client regarding the lawyer’s services;
It constitutes general marketing or branding, the purpose of which is to raise awareness about the lawyer’s services, rather than retention of the lawyer for a particular matter; or
It consists of topical or educational information, including information about legal developments in the lawyer’s practice area, unless it expressly encourages retention of the lawyer.”

Finally, should the LinkedIn content constitute attorney advertising, “the attorney must comply with the requirements of Rules 7.1, 7.4 and 7.5, including, but not limited to: (1) labeling the LinkedIn content “Attorney Advertising”; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; (4) preserving a copy for at least one year; and (5) refraining from false, deceptive or misleading statements.”

There. 365 words. You’re welcome.

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].

Book review: ‘How to Capture and Keep Clients’

This week's Daily Record column is entitled "Book review: ‘How to Capture and Keep Clients’."  My past Daily Record articles can be accessed here.

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Book review: ‘How to Capture and Keep Clients’  

After three long years of law school, you’ve finally graduated and are, at long last, handed a piece of paper that indicates that you’ve obtained your Juris Doctor. It’s official! You’re now a lawyer and can head out into the world and make a living practicing law. Or can you?

Unfortunately the truth of the matter is you can’t practice law without clients. That’s where legal marketing comes in. Marketing your law firm has always been necessary, but these days, with the rise of online marketing, understanding how to use the Internet to gain exposure for your law firm is more important than ever. This is especially so since web-based marketing is often more economical, effective, and less time consuming than traditional marketing such as costly yellow page ads, print advertising and in-person networking.

But with so many options and so little time, what’s a busy lawyer to do? The short answer: Educate yourself. The good news is that the recently published Second Edition of “How to Capture and Keep Clients: Marketing Strategies for Lawyers,” (ABA 2015) written by attorney Jennifer J. Rose, is exactly what the doctor ordered.*

The book starts off with this timeless piece of advice in the introduction: “What’s hot today may be tomorrow’s toast. Some constants remain just as true and reliable about capturing and keeping clients for today’s lawyers as they did for their grandfathers. Be the best lawyer you can. Understand your client. Meet your clients’ needs. The same building blocks remain: identity, conversations, sharing, presence, relationships, reputation, and groups. A decade or two from now, LinkedIn and Twitter may be entirely different beasts, but the core principles will remain unchanged.”

This incredibly useful book includes chapters on all aspects of legal marketing written by 27+ lawyers and legal marketing experts. Whether you’re a new lawyer seeking to obtain your first client or a seasoned attorney interested in learning about new ways to reach potential clients, this book is for you.

It begins with a section on asking for business and covers the basics concepts of marketing. It includes tips to help you land your first client and rainmaking is discussed in depth over the next few sections of the book. Topics covered include: 1) strategies you can implement to make the most of your current and past client relationships, 2) rainmaking with your law firm’s particular geographic region and areas of practices in mind, 3) how to use traditional marketing means, such as business cards, and more recent trends, such as social media, effectively, and 4) ways to fit marketing into your practice, even if it’s just small steps taken each day.

There is also a chapter devoted entirely to the many important ethical considerations that lawyers must keep in mind when marketing their practice. This chapter addresses the top 10 ethical mistakes lawyers make when engaging in rainmaking activities.

The last two chapters stray off the beaten path a bit, but nevertheless focus on important topics. Chapter 7 covers tax-related issues that many law firms encounter. It provides a quick and dirty overview of many important tax considerations, with tips on how to ensure that you avoid any missteps.

Finally, the last chapter addresses the always-important issue of mental health. Lawyers have incredibly high rates of depression, substance abuse, and suicide, so taking steps to reduce these risks is always a good idea. In this chapter, one way of doing that, mindfulness, is covered, including ways to incorporate it into your day-to-day life and practice.

This book is ideal for all lawyers seeking to add tools to their marketing arsenal. Since law schools fail to teach lawyers about the ins and outs of marketing their practices, this knowledge needs to be obtained elsewhere. This book is a great place to start.

*(Disclaimer: I wrote one of the newly added chapters on Twitter for lawyers and was provided with a complimentary review copy of this book).

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 denied in request to dispute warrants for user data

This week's Daily Record column is entitled "Facebook denied in request to dispute warrants for user data."  My past Daily Record articles can be accessed here.

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Facebook denied in request to dispute warrants for user data  

Last week in 381 Search Warrants Directed to Facebook, Inc. v. New York County Dist. Attorney’s Off., (2015 NY Slip Op 06201) the New York Appellate Division, First Department considered an appeal brought by Facebook. In this appeal, Facebook sought to overturn the trial court’s refusal allow it to dispute search warrants issued by the New York County District Attorney’s Office and seeking access to 381 Facebook user’s accounts.

In the warrants, it was alleged that there was “reasonable cause to believe” that the Facebook data of the 381 users included evidence of offenses that included grand larceny in the second degree, grand larceny in the third degree, filing of a false instrument in the first degree and conspiracy. The state sought access to 24 categories of information that constituted nearly every post and action taken by the selected users on Facebook. The warrants also contained a nondisclosure provision preventing Facebook from disclosing the warrants to their users.

The court focused its analysis on determining the proper statutory basis for the warrant requests, concluding that they were more akin to search warrants as opposed to subpoenas issued pursuant to the Federal Stored Communications Act. Accordingly, the court held that Facebook had no legal basis for its motion to quash the warrant: “We now hold that Supreme Court’s summary denial of Facebook’s motion ‘to quash’ the search warrants was proper because there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed. The key role of the judicial officer in issuing a search warrant is described generally by the Fourth Amendment and more specifically by state statutes. None of these sources refer to an inherent authority for a defendant or anyone else to challenge an allegedly defective warrant before it is executed.”

The court explained the basis for its determination as follows: “Facebook cannot have it both ways. On the one hand, Facebook is seeking the right to litigate pre-enforcement the constitutionality of the warrants on its customers’ behalf. But neither the Constitution nor New York Criminal Procedure Law provides the targets of the warrant the right to such a pre-enforcement challenge. On the other hand, Facebook also wants the probable cause standard of warrants, while retaining the pre-execution adversary process of subpoenas. We see no basis for providing Facebook a greater right than its customers are afforded.”

The court acknowledged the validity of privacy concerns raised by Facebook but ultimately declined to opine on those issues since the ruling on the procedural nature of the warrants negated the need to address those claims. “(W)e are cognizant that decisions involving the Fourth Amendment have the power to affect the everyday lives of all U.S. residents, not just criminal suspects and defendants. Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded ‘all’ communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.”

Accordingly, as it stands, the determination of the whether a warrant for social media is too broad continues to rest with trial court judges — some of whom unfortunately have a minimal understanding of the workings of social media platforms.

Facebook has indicated its intent to appeal the Appellate Division’s ruling, no doubt in part due to the massive amounts of administrative time and effort required to comply with these types of warrants, the numbers of which are only increasing in frequency as social media evidence becomes an important tool for prosecutors. So stay tuned; today’s decision may be overturned in the near future. Who knows what tomorrow may bring?

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].

2015 Social Media Ethics Guidelines released

This week's Daily Record column is entitled "2015 Social Media Ethics Guidelines released ."  My past Daily Record articles can be accessed here.

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2015 Social Media Ethics Guidelines released 

My good friend Scott Malouf, a Rochester attorney who also aids other lawyers in using social media as evidence, recently advised me that the Commercial and Federal Litigation Section of the New York State Bar Association had just released its 2015 Social Media Ethics Guidelines.

The 2015 edition updates the inaugural guidelines, which were released March 2014, and includes two new sections on Attorney Competence and Using Social Media to Communicate with a Judicial Officer. Additionally, new subsections have been added which address:

1) Lawyer’s Responsibility to Monitor or Remove Social Media Content by Others on a Lawyer’s Social Media Page; 2) Attorney Endorsements; 3) Retention of Social Media Communications with Clients; and 4) Maintaining Client Confidences and Confidential Information.
This comprehensive set of guidelines was drafted by a very knowledgeable group of lawyers, some of whom I know personally. It offers insightful and practical advice regarding the issues presented when lawyers interact online.

That being said, I’ve consistently written in past articles that I don’t believe that social media should be treated any differently than any other type of communication since online conduct is simply an extension of offline conduct. Given my position on this, I don’t necessarily agree that a separate set of guidelines specifically addressing social media is necessary.

But, if there is going to be a set of guidelines adopted by the NYSBA in the near future, this comprehensive document is certainly the one to consider adopting. It provides an extensive overview of New York ethics decisions on a vast assortment of social media-related issues, including attorney advertising and solicitation, mining social media for evidence, and researching jurors using social media.

For the most part, I agree with the advice provided. There are, however, two conclusions/recommendations with which I take issue. In this article I’ll address the first and will address the second next week.

First, there’s the newly added Guideline 2D, which addresses the responsibility of lawyers to monitor and remove problematic attorney endorsement found on social media. In part, this section provides: “A lawyer must ensure the accuracy of third-party legal endorsements, recommendations or online reviews posted to the lawyer’s social media profile. To that end, a lawyer must periodically monitor and review such posts for accuracy and must correct misleading or incorrect information posted by clients or other third-parties.”

And in footnote 25, the following directive is added: “Lawyers should also be cognizant of such websites as Yelp, Google and Avvo, where third parties may post public comments about lawyers.”
In my opinion, this section imposes a nearly impossible burden on lawyers to be aware of and to monitor social media sites and online profiles which they may not have had a part in creating, and over which they may not have any control. Not only are lawyers purportedly responsible for monitoring the content of the profiles they and sites they created, but according to this section they also must be cognizant of other sites where profiles have been created on their behalf and must monitor not only their profiles, but also comments made elsewhere on those sites that relate to the attorney’s services.

The time required to monitor this information and regularly conduct searches on these sites will be substantial. And even more time will be required to stay abreast of the vast numbers of online attorney directories and business review sites, which number in the thousands, with new ones popping up every day.

I would argue that this particular section places an undue burden on lawyers, most of whom are busy trying to keep their heads above water and their law practices out of the red in the midst today’s competitive legal landscape. I believe they should only be responsible for monitoring content on profiles that they’ve claimed, not those over which they arguably might have control should they choose to take the step of claiming their profiles.

Another recommendation in the guidelines that I take issue with relates to mining social media for evidence, so tune in next week for more on that.

And, in closing, I would like to emphasize that although I’m providing constructive criticism about a few aspects of the guidelines, the document as a whole is an impressive piece of work and provides valuable insight and guidance for New York lawyers on how to ethically use social media in their practices.

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].

A look at judges, Facebook and recusal

This week's Daily Record column is entitled "A look at judges, Facebook and recusal."  My past Daily Record articles can be accessed here.

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A look at judges, Facebook and recusal

Judges are human. They have relationships, both professional and personal. Existing in a judicial vacuum that is devoid of relationships simply isn’t an option and doesn’t conform with reality. But sometimes when you read the ethics opinions that control the conduct of judges, you might wonder if that’s the case. In some cases, the opinions indicate that judges must avoid many typical professional relationships and friendships, all to avoid the appearance of impropriety or lack of impartiality.

 

This has especially been the case when it comes to social media and a number of judicial ethics committees have taken a rather strict approach when it comes to judges interacting on social media. See, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)

 

In 2009 New York came down on the other side of the issue in 2009 Advisory Opinion 08-176. In that opinion, the New York Advisory Committee on Judicial Ethics concluded that it is generally permissible for judges to connect online with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules.

 

In 2013, another opinion was issued in regard to judges and social media in New York that I have not yet written about. At issue in Opinion 13-39 was whether a judge “must, at the request of the defendant and/or, his/her attorney, exercise recusal in a criminal matter because (the judge is) ’Facebook friends’ with the parents or guardians of certain minors who allegedly were affected by the defendant’s conduct.”

 

The committee concluded that “the mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal. Nor does the committee believe that a judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]) or that there is an appearance of impropriety (see 22 NYCRR 100.2[A]) based solely on having previously ‘friended’ certain individuals who are now involved in some manner in a pending action.”

 

In reaching its decision, the committee explained that regardless of the nature of a specific relationship — whether on social media or otherwise — the burden rests with the judge to assess the relationship and their ethical obligations when it comes to the relationship. The committee stated that a judge “should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge’s court through a social network … [and] must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a … relationship requiring disclosure and/or recusal.”

 

Importantly, the committee noted that if the judge concluded that, in the case at hand, if the relationship with the defendant’s parents was only that of an acquaintance, then recusal was not required. But the committee advised that should a judge reach that decision and decide that recusal is unnecessary, that it would be wise to “make a record, such as a memorandum to the file, of the basis for your conclusion. This practice, although not mandatory, may be of practical assistance to you if similar circumstances arise in the future or if anyone later questions your decision.”

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 holds service via Facebook permissible

This week's Daily Record column is entitled "NY judge holds service via Facebook permissible."  My past Daily Record articles can be accessed here.

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NY judge holds service via Facebook permissible

 

Last October I wrote about two different U.S. judges who had issued orders permitting service upon litigants using Facebook. First, in February 2014, U.S. Magistrate judge for the Eastern District of Virginia, Thomas Rawles Jones Jr., issued an order to that effect in Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear; Who Near; whonear.me, where the defendant was located in Turkey.

In the other case, a family court judge, Staten Island Support Magistrate Gregory Gliedman, permitted service on the plaintiff’s U.S.-based ex-wife via Facebook where the plaintiff had attempted to serve her using more traditional means and had failed because his ex-wife had moved from her prior address and had left no forwarding address.

Most recently, just a few weeks ago, another New York judge joined the pack by permitting service via Facebook in a matrimonial case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096), where the plaintiff sought permission from the court to serve a divorce summon on her husband via his Facebook account. Ultimately, the court granted her request.

In reaching his decision, New York County Supreme Court Judge Matthew F. Cooper acknowledged the impact of social media on our culture: “The past decade has also seen the advent and ascendency of social media, with websites such as Facebook and Twitter occupying a central place in the lives of so many people … Thus, it would appear that the next frontier in the developing law of the service of process over the Internet is the use of social media sites as forums through which a summons can be delivered.”

He then considered the application in light of the plaintiff’s assertion that her husband, Victor Sena Blood-Dzraku, had lived separately from his wife for some time, had only recently been in touch with her by Facebook and telephone, and had refused to provide her with his home or work location or to otherwise make himself available for service.

Based on those factual allegations and after analyzing the applicable statutes and standards, Judge Cooper concluded that service via Facebook would be acceptable: “Under the circumstance presented here, service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process. Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”

In order to ensure that the defendant actually received notice of the divorce proceeding, the court required a very specific procedure be followed when serving him via Facebook: “(Plaintiff’s attorney shall log into plaintiff’s Facebook account and message the defendant by first identifying himself, and then including either a Web address of the summons or attaching an image of the summons.

This transmittal shall be repeated by plaintiff’s attorney to defendant once a week for three consecutive weeks or until acknowledged by the defendant. Additionally, after the initial transmittal, plaintiff and her attorney are to call and text message defendant to inform him that the summons for divorce has been sent to him via Facebook.”

So, once again, yet another judge weighs in and gives service via social media sites his blessing. Clearly service by this means won’t be appropriate in all situations, but it’s heartening to see judges who acknowledge the impact of social media and make efforts to understand how these sites work and how they can be used responsibly to forward the goals of our judicial system.

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].