Web/Tech

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

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


Should Judges Provide Online Recommendations? Maryland Weighs In

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

*****

Should Judges Provide Online Recommendations? Maryland Weighs In

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

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

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

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

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

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

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

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

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

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

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

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


North Carolina on the ethics of mining social media for evidence

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

*****

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

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

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

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

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

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

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

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

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

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

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

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


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

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

*****

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

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

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

That’s why many courts and ethics committees have begun to consider the issue of whether judges’ social media connections with the lawyers appearing before them warrant disqualification. For example in 2012, Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney.

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

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

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

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

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

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

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

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


Round Up: Cybersecurity, Dictation Tools, and Law Firm Disaster Planning

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


Round up: Document Assembly Software, Robot Lawyers, and Paperless Tips

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


Email tracking and lawyers: not a great mix

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

*****

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

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

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

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

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

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


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

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

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

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

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


When judges, political commentary, and social media collide

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

*****

When Judges, Political Commentary, and Social Media Collide

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Email tracking and lawyers: not a great mix

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

*****

Email tracking and lawyers: not a great mix

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

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

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

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

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

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

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

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

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

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

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


Ohio Court on service of process via Amazon messaging

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

*****

Ohio Court on service of process via Amazon messaging

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

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

Fast forward to 2019, and effecting service of process using social media platforms is no longer unheard of. Oftentimes, the platform of choice is Facebook. The first time I wrote about this was in October 2014. At that time, two different judges had issued orders permitting service upon litigants using Facebook: a U.S. Magistrate judge for the Eastern District of Virginia (Whoshere, Inc., v. Gokhan Orun d/b/a/ WhoNear) and a New York family court judge (Noel B. v. Anna Maria A., Docket No. F-00787-13/14B).

Then, in March 2015, another New York judge jumped on the bandwagon and permitted service via Facebook in a matrimonial case (Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096)). Next, in 2016, I wrote about Ferrerese v. Shaw,15 CV 3738 (ARR) (CLP), where United States Magistrate Judge for the Eastern District of New York, Cheryl L. Pollak permitted an alternate method of service via Facebook, but also required the plaintiff to attempt to effect service using other methods as well.

I also covered this issue in June of 2017 when I wrote about Axberg v. Langston, Docket No. MRS-C-157 (2016). In this post-adoption case, as reported in the New Jersey Law Journal, Judge Stephan C. Hansbury, Morris County P.J. (ret.), considered the issue of whether service of process could be effected via Facebook and concluded that service via Facebook, and Facebook alone, was a sufficient method of service.

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

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

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

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

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

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

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

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