ethics of social media - us district court conference · 2015-04-02 · ethics of social media...

U.S. District Court Conference Las Vegas, Nevada

5/7/2015

Charity Felts, Esq. & Rebecca Bruch, Esq. Erickson, Thorpe & Swainston, Ltd. 1

ETHICS OF SOCIAL MEDIA

Presented by:

Rebecca Bruch, Esq.

Charity F. Felts, Esq.

Erickson, Thorpe & Swainston, Ltd.

U.S. District Court Conference

May 7, 2015

Sound familiar?

I don’t have to worry about social media

because I don’t use social media.

Social media doesn’t concern me, I don’t even

have a Facebook account.

What the heck is social media?

It’s time to face the monster


5/7/2015


Social media and the related

ethical issues

Ethical issues and the use of social media can

impact your practice in the following ways:

1. The use of social media as a discovery and

investigatory tool during litigation;

2. Counseling clients on their use of social

media; and

3. Using social media as a marketing tool

Communications with represented

parties

In the social media context

An attorney is barred from making an ex parte

friend request of a represented party

When the communication is intended to illicit

information about the subject matter of the case,

it is impermissible no matter how the

communication is transmitted

See SDCBA Ethics Op. No. 2011-2

Communications with unrepresented

witnesses

In the social media context

Duty not to deceive prohibits attorney from making a friend request of an unrepresented witness without disclosing the purpose of the request

See SDCBA Ethics Op. No. 2011-2

Accessing public social networking sites

You can access public pages of another party’s social networking site (e.g. Facebook)

See NY State Bar Ethics Op. No. 843


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Obtaining information from social

media

Gaining access through a third person

Lawyers are not permitted to engage in

dishonesty, fraud, deceit, misrepresentation, or

false statements

See Philadelphia Bar Association Ethics Op. No.

2009-02.

Juror research

Internet research is becoming a fundamental

component of client representation and

advocacy

Standards of competence and diligence vs.

ethical obligations

Attorneys may use social media sites for juror

research, but beware of engaging in

communication as a result

Juror research

Carino v. Muenzen, 2010 WL 3448071, (N.J.

Sup. Ct. App. Div. Aug. 30, 2010) (unpublished

opinion)

Trial court barred plaintiff’s attorney from using

his laptop to look up potential juror’s using the

courthouse's open WiFi

Sought a new trial after trial judge prohibited

attorney from using laptop during jury selection


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Juror research

Per the Carino court:

There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it. Carino at *10.

Juror research

New York City Bar Association Op. No. 2012-

02

No communications with a juror -- even if

accidental or inadvertent

Do not follow a potential juror’s Twitter feed

Do not “friend” a juror

Do not “like” juror’s page

Inadvertent access - ABA’s Formal Op. No.

466 has a different view

Reviewing jurors’ internet presence


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Highlights from the ABA opinion:

Passive review of juror’s social media, available

without making a request, and which the juror is

not aware, does not violate the rules

Lawyer may not personally, or through another,

send an access request to a juror


Highlights from the ABA opinion:

A lawyer who uses a shared social media

platform to passively view juror social media

information does not constitute communication

with a juror

If a lawyer discovers criminal or fraudulent

conduct by a juror, the lawyer must take

reasonable remedial measures, which can

include disclosure to the tribunal

Anonymous browsing

Attorneys must not communicate with a juror

If a juror has any sort of notice that a lawyer

has viewed his or her page, the lawyer may

have violated an ethical rule

Even if the contact was inadvertent

Model Rule 3.5 – Impartiality and Decorum of the

Tribunal


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Anonymous browsing

Facebook – search for juror via Google or by

logging into Facebook if you have an account

Allows you to see the user’s public profile

May not be much available if the individual is

using privacy settings

Twitter – search for juror via Google or by

logging into Twitter if you have an account

Do not “follow” or “request to follow”

Anonymous browsing

LinkedIn – change settings in your LinkedIn

account to anonymous before searching for a

juror

Riskier tool unless you change to “completely

anonymous” searching

Consult your social media provider’s privacy

settings regularly to be sure you are browsing

anonymously. Settings are subject to change.

Jurors’ social media activity

“I guess all I need to know is GUILTY. lol.”

“[T]his is my secret blog. I don't know how secret it really is though. I want to tell secret jury things.”

Juror discussed case on a newspaper’s online comment board

Texting in plain sight of the judge – the unexpected glow in the juror’s chest while the courtroom lights were dimmed during video evidence


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Juror social media activity

Florida juror held in contempt and sentenced to three days in jail

Friending a defendant in a personal injury case

Posting “Score…I got dismissed” after being discharge from the jury

New York juror held in contempt and fined $1,000 after texting friends details about deliberation in a case

The friend was a district attorney who alerted the judge of the texts

Example from Missouri wrongful-

death trial

Juror: “Got picked for jury duty.”

Juror: “Sworn to secrecy as to details of this case. Most importantly the 3:00 p.m. Cocktail hour is not observed!”

Friend: “If he's cute and has a nice butt, he's innocent!”

Juror: “Drunk and having a great food at our fav neighborhood hangout.”

Friend: “I'm still amazed they allow jurors to nip from a flask all day.”

Juror: “Starting day 8 of jury service.”

Friend: “Remember nice ass = innocent!”

Juror: “Civic duty fulfilled and justice served. Now, where's my cocktail????”

Friend: “Was it Miss Peacock in the library with the lead pipe?”

Juror: “Civil case Verdict for the defendants . I was the jury forearm deliberations and verdict in under one hour.”

Jury admonishment

Majority of judges take steps to warn jurors not

to use social media during trial

Suggest frequent reminders

Before trial

Close of case

End of each day

Other times as appropriate

Violations are usually reported by fellow jurors


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Model jury instruction

Model jury instruction

Social media: the more you know


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What you might learn

Simply using a search engine can yield extensive public information on prospective jurors

What to look for:

Likes

Dislikes

Friends and Followers

Education and Employment

Social Media Activity Level

Political Affiliations

Personal Blogs or Websites

Using social media in litigation

Accessing the other party’s social media posts

and information

Common objections:

Privacy concerns

Fishing expedition

Overly broad

Burdensome

Harassing

Embarrassing


Locked or private? It may not matter.

Emotional injuries will manifest on social

media posts

What’s potentially relevant?

Relevant discovery often include

profiles, postings, messages, photographs or

videos

EEOC v. Simply Storage Management, 270

F.R.D. 430 (S.D. Ind. 2010)


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Broad discretion of the court

Physical capabilities and social activities

depicted on Facebook

Balancing access against personal interest

Thompson v. Autoliv ASP, Inc., 2:09-CV-

01375-PMP-VCF, 2012 WL 2342928 (D. Nev.

June 20, 2012).

Spoliation

Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013). Personal injury and wrongful death case.

New trial sought because of undisputed misconduct by Plaintiff and his attorney

Defense attorney sought discovery of relevant info on Facebook page

Client instructed to “clean up” his Facebook page because “we don’t want any blow-ups of this stuff at trial.”

Spoliation

Allied Concrete Co. v. Lester, cont’d.

Plaintiff deleted his account and said he didn’t

have a Facebook account

Motion to Compel resulted in a partial response

Trial court awarded sanctions - $542,000 against

plaintiff’s counsel and $180,000 against plaintiff

Adverse inference jury instruction

Appellate court did not grant a retrial on the basis

of misconduct


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Advising clients

Advise your clients about the potential consequences of posting information on social media What they should/should not post

What postings may/may not be removed

Implications of social media posts

New York City Law Association Ethics Op. No. 745 (July 2, 2013)

Caution: Do not instruct the client to remove information that, because of the commencement of litigation, must be preserved

Attorneys using social media

LinkedIn

Avvo.com

Yelp

Justanswer.com

Lawyers.com

Confidentiality concerns

Rule 1.6 – Confidentiality of Information

In re Tsamis (Ill. Disc. Comm’n 2013). Lawyer defends herself in an online controversy.

Client posted a bad review of lawyer on Avvo.com

Lawyer responded and posted confidential information

Lawyer suspended

Moral of the story: Don’t engage


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Thrashing your opposing counsel

In re Carlson, 833 N.W.2d 402 (Minn. 2013)

Carlson represented the husband in a contentious divorce.

Carlson did not get along with opposing counsel, S.L.

Carlson posed as a fictitious former client of S.L. and posted a very negative review of on Avvo.com

Carlson resigned and stipulated to a public reprimand

Endorsements and specialties

Do LinkedIn endorsements violate legal

ethics?

Some bar associations (SC, NY, FL) say yes

Prohibits a lawyer from listing specialties unless

the lawyer actually holds the specialization

A lawyer shall not make a false or misleading

communication about the lawyer or the lawyer’s

services. Rule 7.1.

Other pitfalls

Groupon – choosing a lawyer based upon

Groupon may not lead to retention of a person

with the requisite skill to handle the case

Blogs/chats offering advice – may lead to the

inadvertent creation of client relationship; may

not allow for proper conflict check or

disclosure of adverse interest

Blogging about clients – may lead to violation

of confidentiality obligations


5/7/2015


Monster, what monster?

Questions/Comments

Rebecca Bruch, Esq.

Charity F. Felts, Esq.

Erickson, Thorpe & Swainston, Ltd.

99 W. Arroyo St.

Reno, NV 89509

775-786-3930

[email protected] [email protected]

mailto:[email protected]

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ethics of social media - us district court conference · 2015-04-02 · ethics of social media...

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